[EL] My latest blog: The Lessons of Town of Greece v. Galloway for Campaign Finance Laws

[Schultz, David A.]

My latest blog/ The Lessons of Town of Greece v. Galloway for Campaign
Finance Laws
You can find it at the link below and I have included the entire text of it
in the e-mail below.

http://schultzstake.blogspot.com/2014/05/the-lessons-of-town-of-greece-v.html


    The Supreme Court’s recent Town of Greece v. Galloway ruling upholding
invocation of a prayer before the start of a local town board meeting is
not a decision that one would think would be of significance to election
law, but it is.  Specifically, the Court’s discussion about coercion and
religious beliefs has potential importance to those arguing against
campaign finance laws, especially rules mandating disclosure of political
contributions.
    At issue in Galloway was a practice of town board to begin its monthly
board meetings with a prayer delivered by a local clergy member.  Clergy
were selected by local congregations listed in a local directory.  It so
happened, according to the Court, that most of the local congregations were
Christian and therefore most of the prayers were Christian.  Citizens
attending the board meeting objected, claiming such prayers constituted an
endorsement of Christianity, in violation of the First Amendment
Establishment clause.  The Supreme Court disagreed.  In ruling against them
the Court offered several reasons, including the fact that starting
legislative deliberations with a prayer is a long-standing practice that
goes back to the first Congress.  But more importantly, the Court keyed in
on the notion of coercion.
    One of the arguments made by those objecting to the prayer was that it
“coerces participation by nonadherents”–in effect, it forces those who do
not wish to participate in the prayer to go along with it in order to
please board members from whom they are asking a favorable ruling on a
particular matter.  Justice Kennedy, writing for the majority, acknowledged
that the First Amendment bars the government from forcing individuals to
participate in any religious exercise.  But nonetheless, Kennedy disagreed.
Noting that the issue of coercion is fact-intensive, Kennedy  stated first
that the prayer was not directed at the public but it was for the board
members to help guide them in their duties.  Moreover Kennedy said there
was no evidence that the town board had singled out any member of the
public because it refused to participate in the prayer.  Requests to stand
for prayer came not from the board members (the government) but from local
clergy.
    But more significantly while some objected that prayers made them feel
unwanted, Kennedy  distinguished that feeling from coercion.

    [R]espondents stated that the prayers gave them offense and made them
feel excluded and disrespected. Offense, however, does not equate to
coercion. Adults often encounter speech they find disagreeable; and an
Establishment Clause violation is not made out any time a person
experiences a sense of affront from the expression of contrary religious
views in a legislative forum, especially where, as here, any member of the
public is welcome in turn to offer an invocation reflecting his or her own
convictions.

Exposing individuals to ideas that they would rather not hear is not
coercion, especially when those ideas a brought up are not by the
government but private citizens, in this case, members of the local
clergy.  For the Court, it is not coercion to be exposed to ideas one
objects to unless in some way the government (my emphasis) does something
more, such as retaliates.  Justice Thomas and Scalia in their concurrence
reinforce this notion, stating that coercion only occurs when religious
orthodoxy is enforced “by force of law and threat of penalty.”
    So how and why is all of this significant to campaign finance laws?
Central to a host of recent decisions, such as McCutcheon v. F.E.C, Davis
v. Federal Election Commission, Citizens United v. F.E.C, and  Federal
Election Commission v. Wisconsin Right to Life, Inc is the concept  that
particular laws “chill political” speech.  The existence of some type of
campaign finance laws, especially in the case of Davis, where candidate
contribution limits would be raised to offset spending by wealthy donors,
were seen to chill or discourage individuals from spending or contributing
money because of fear that others would be able to contribute more to
offset their spending.  In McCutcheon, aggregate contribution limits were
seen as chilling free speech, in Citizens United bans on corporate
independent expenditures were deemed censorship.  In all these case laws
were viewed as coercive, either directly or indirectly discouraging
individuals from donating.
    Now one can have a serious debate regarding whether all of these
regulations really chilled or intimidated individuals from giving money.
In many of these cases the issue was not really not be able to give, but
how much or how, but to read these cases one would think that the
challenges came from a bunch of political wallflowers, fearful of what
others may think about them.
    The best example of this comes in Doe v Reed where challenges came to
an Oregon law arguing that the disclosure of the names of individuals who
signed ballot petitions chilled their speech.  The Court rejected the
claims, noting no record of real intimidation or retaliation.  The
Court–with Chief Justice Roberts writing–rejected assertions that the mere
posting on the Internet of the names of the petitioners along with maps
indicating their locations is not enough of a showing of intimidation and
harassment to void on First Amendment grounds their disclosure.  Scalia,
pushes the issue even further, declaring that we should have the courage of
our convictions.

    Requiring people to stand up in public for their political acts fosters
civic courage, without which democracy is doomed. For my part, I do not
look forward to a society which, thanks to the Supreme Court, campaigns
anonymously and even exercises the direct democracy of initiative and
referendum hidden from public scrutiny and protected from the
accountability of criticism. This does not resemble the Home of the Brave.


     The First Amendment protect us from the government, but not the dirty
looks and approbation of others.  The government cannot persecute
individuals who hold minority or dissenting positions, but nothing in the
First Amendment protects dissidents from what John Stuart Mill described in
book IV of On Liberty calls the “unfavorable judgment of others.”  Taking
unpopular positions comes with criticism and no one should expect that the
people relinquish their right to criticize.
    Thus what Greece v. Galloway states when it comes to religion is that
the First Amendment does not protect individuals from being shunned or
criticized by the public.  Feeling offended is different from being
coerced.  And it when it comes to campaign finance laws, especially
disclosure, Galloway declares that short of real proven harassment and
intimidation, being shunned, criticized, given dirty looks, or being
subject to public judgment is not chilling but part of what should be
expected when one takes political positions.  The standard regarding what
constitutes coercion in Galloway has precedent implications for disclosure
laws, suggesting that more than mere offense or unpopularity of a viewpoint
is necessary to implicate First Amendment concerns.

-- 
David Schultz, Professor
Editor, Journal of Public Affairs Education (JPAE)
Hamline University
Department of Political Science
1536 Hewitt Ave
MS B 1805
St. Paul, Minnesota 55104
651.523.2858 (voice)
651.523.3170 (fax)
http://davidschultz.efoliomn.com/
http://works.bepress.com/david_schultz/
http://schultzstake.blogspot.com/
Twitter:  @ProfDSchultz
My latest book:  Election Law and Democratic Theory, Ashgate Publishing
http://www.ashgate.com/isbn/9780754675433
FacultyRow SuperProfessor, 2012, 2013
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