free speech

Negative Campaigns in the U.S. and Voter Turnout

Election Law Society · April 16, 2019 ·

By: Yang Cao

The United States, as the world leader (for democratic countries at least), may excel in many fields, but in terms of voter turnout it trails far behind other industrialized countries. The voter turnout measured in terms of voting age population was only 55.7% in 2016, while the highest countries report that more than 80% of the voting age population actually votes. Studies show that demographics like education, income and age can help predict voter turnout; but, these factors cannot be the cause of such huge discrepancies in voter turnout between U.S. and countries that have highest voter turnout, as the U.S. should have similar demographics to those countries. On the other hand, some studies have concluded that, while the U.S. and countries like Sweden might have similar demographic, the U.S. has far more negative campaigns than Sweden and other European countries, and that rising negative campaign in the past decades is solely an American phenomenon. Given these facts, it is only natural to ask why politicians have to use negative campaigns instead of positive campaigns, which does not hammer voter turnout. Researchers have also proven that negative campaigns are more effective than positive ones, which means kind persuasion will not stop politicians from doing so. Meanwhile, outlawing negative campaigns is also unrealistic because of it would be content based and subject to strict scrutiny.

Balancing Nonpartisan Judicial Elections with Candidates’ First Amendment Rights in Kentucky

Election Law Society · March 3, 2017 ·

By: Carrie Mattingly

In Kentucky, all state court judges are elected in nonpartisan elections. Kentucky’s Code of Judicial Conduct seeks to keep candidates on nonpartisan message. But the 6th Circuit Court of Appeals recently struck down some judicial campaign restrictions on First Amendment grounds.

One sitting and two aspiring Kentucky judges brought suit to stop the enforcement of these judicial canons against them. Robert A. Winter, Jr. distributed campaign literature identifying himself as a “lifelong Republican,” and he received a letter stating that this literature may have violated the canon prohibiting campaigning “as a member of a political organization.” Judge Allison Jones asked voters to “re-elect” her, even though she was initially appointed to her seat, and pledged to provide stiff penalties for heroin dealers if elected. She also received a letter stating that her “re-elect” statement may have violated the canon prohibiting “false and misleading statements” and that her “stiff penalties” comment may have been an impermissible “commitment” inconsistent with the impartial performance of judicial duties. Finally, Judge Cameron J. Blau wished to give speeches supporting the Republican Party, to hold Republican fundraisers, to seek and receive Republican endorsements, and to donate to candidates and to the party, but he refrained in fear of sanctions.

Robo-calls, in Montana and Elsewhere

Election Law Society · April 1, 2016 ·

By: Cameron Boster

Background

Missoula, Montana, is a beautiful city. There are mountains in the distance, tall, deep-green trees everywhere, old buildings – and a rocky, white-swirling river moving through it. No reasonable person seeing Missoula for the first time would think to focus on the city’s current robo-call election law controversy.

This month, parents of students enrolled in Missoula’s schools received automated phone calls containing a message from Missoula’s mayor, John Engen. The content of the message is available on Youtube. In short, the message urges parents to vote on an upcoming bond, tells them where and how they can cast their ballot, and ends with this encouragement: “Thank you for everything you do to support your children, and to ensure a positive future for your family – and our wonderful community.”

Massachusetts Rules against Ban on Lying in Campaigns

Election Law Society · February 5, 2016 ·

By: David Schlosser

Over the summer of 2015, a Massachusetts law banning lying in campaign ads was struck down by that state’s highest court. This decision mirrors that of an Ohio federal judge last year, a case previously covered on this blog by Sarah Wiley. Like the Ohio law, the Massachusetts law criminalized telling lies about candidates for political office, and was as on the books for several decades before being successfully challenged in court. The lawsuit arose when a Democratic state representative alleged that a right-leaning PAC lied in a campaign brochure. The brochure in question alleged that Rep. Brian Mannal sponsored a bill that would “help convicted sex offenders” because he—as a defense attorney who had represented sex offenders in the past—stood to profit. Mannal maintained that he never provided legal representation to sex offenders. One of the bills in question would make GPS tracking devices optional for sex offenders on parole, rather than mandatory. After filing the bill in 2013, Mannal reported that he received death threats.

Fighting for the First Amendment in Campaigns: Free Speech in Wyoming

Election Law Society · January 22, 2013 ·

by Kathleen Imbriglia

The regulation of campaigns is controversial, weighing the interests to prevent corruption and promote disclosure while protecting the First Amendment’s fundamental right to free speech. Such tension is exemplified by the ongoing suit, Free Speech v. Federal Election Commission, filed in the Tenth Circuit Court of Appeals by the Wyoming-based organization, Free Speech. Free Speech first filed a suit in June arguing their advertisements are considered “issue advertisements” and that they should not be subject to the ambiguous reach of the U.S. federal regulation, 11 C.F.R. § 100.22(b). However, on October 3, 2012, Federal District Judge Skavdahl upheld the regulation, deeming it to not be overly vague or uncertain on the grounds that it is consistent with the functional equivalence test. In response, Free Speech filed a motion for emergency injunction so as to allow Free Speech’s campaign advertisements to run prior to the 2012 federal election. The Tenth Circuit Court of Appeals denied the motion and the case is currently awaiting appeal. [Read more…] about Fighting for the First Amendment in Campaigns: Free Speech in Wyoming