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

Thu May 8 03:54:39 PDT 2014

Thank you for your excellent observation, Dr. Schultz.

There is a significant difference between the peer pressure to stand
that a Jewish person feels when resisting a call to pray to someone
else's deity at the beginning of a local governmental meeting, and a
concern by the maker of Dixie Cups and Brawny Paper Towels that people
may not buy their products once they learn about the obnoxious brand
of politics they are pushing.

When I go to these local governmental meetings, and have stood and
bowed during the prayers for a generic God, I often find that the
clever clergyman sneaks in the ". . . in the name of Jesus Christ Our
Lord . . ." part right at the end. Too late to take it back then. So I
am often the one guy in the room not rising even at the beginning for
the generic parts.

The stares and approbation of neighbors who wonder why the guy who
lives down the street from them is disrespecting God in this fashion
is inherently more coercive than the possibility that people may not
buy a corporation's red plastic cups. My neighbors who attend these
meetings must wonder whether I spend my weekends dancing around a
bonfire naked except for the goat mask. It tends to affect one's
credibility around these parts when one rises later to make a point
about the county's new proposed noise ordinance. No doubt, if I am
recognized in the neighborhood, people will hustle their children
indoors.

Why should the Koch brothers effectively get to spend their weekends
dancing naked in their masks around the irresponsible political
conflagrations they create by promoting false information in the
public sphere and not be required to take responsibility for it, while
my neighbors should be left to assume that the weekends I go to temple
are spent cavorting around blasphemous bonfires?

On Wed, May 7, 2014 at 10:27 PM, Schultz, David A. <dschultz at hamline.edu> wrote:
> 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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