Election Law & Campaign Finance
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
– First Amendment to the U.S. Constitution
Most election law cases involve the First Amendment, as many of these laws are enacted at the expense of the freedoms guaranteed to all by the First Amendment, and particularly the Freedom of the Press.
CLDEF believes that most federal and state election laws and campaign finance laws are not about good government. Rather, they are designed by incumbents to protect the central interest of incumbents — which is to get reelected.
Incumbents would never think to pass an election-related law without knowing for certain whether it would benefit them, or make them more or less vulnerable to a challenger. Therefore, courts should give no deference whatsoever to laws passed by Congress or state legislatures. In fact, all such laws should be viewed with suspicion.
For many years, CLDEF has been involved in testifying before the Federal Election Commission, and opposing efforts to limit the freedom of Americans to criticize and oppose incumbent legislators.
Below are some of the Election Law and Campaign Finance matters in which CLDEF has been involved.
“No person shall be … deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.”
– Fifth Amendment to the U.S. Constitution
For most of the history of our nation, the government did not claim the right to seize personal property of its citizens — unless the government had a superior right to that property. In recent years, the government has assumed a power that had been developed by Oriental Potentates — the right to seize the property of those accused of crimes — even before conviction.
Giving the government the power to seize a person’s assets unconnected with a crime is bad enough after conviction. It is much worse when government seizes a person’s assets before trial, as now permitted by several federal laws. One of the benefits to the government of a pre-trial seizure is that a defendant is robbed of his ability to resist the will of federal prosecutors. A defendant is unable to hire defense counsel of his choice, and is forced to rely on already overburdened federal defenders, often leading to plea bargains, even when the defendant is not guilty. CLDEF is fighting against this dangerous power of pre-trial seziure.
Additionally, CLDEF has argued that the TSA’s intrusive body scanners constituted a warrantless search and violate citizens’ rights, including his right to travel as protected by the Fifth Amendment.
Below are some of the Asset Forfeiture matters in which CLDEF has been involved.
CLDEF’s Brief in the Zarda v. Altitude Express was the focus of an article in World Net Daily. The article begins: “It’s Congress that writes the laws; the courts only interpret them. So suggests a brief in a court fight that is quickly heating up over whether a 1960s law, Title VII, protects employees from gender-orientation discrimination.”
This afternoon, CLDEF General Counsel Bill Olson was a guest of Warren Olney, host of “To the Point.” The topic of the radio show was the “Politics and the rights of gay, lesbian and transgender Americans.” Bill’s comments focused on CLDEF’s amicus brief opposing judicial usurpation of legislative power in Zarda v. Altitude Express. He also defended President Trump’s recent Tweet about “transgendered” persons serving in the military. The show is archived at: KCRW.com
This article by Bloomberg BNA mentioned CLDEF’s brief in Zarda v Altitude Express.
This article mentions our brief in support of prayer by county commissioners in North Carolina.
One of the areas of focus by CLDEF has been to urge courts to return to a proper, historic understanding of the Fourth Amendment as a protection of property rights. That approach was adopted by the U.S. Supreme Court in 2012 in the United States v. Jones case. Nonetheless, many lawyers and judges continue to evaluate Fourth Amendment challenges as though the Amendment only protected a person’s “reasonable expectation of privacy.” Of course, the word privacy is not even in the Constitution. That test is being used by judges who wish to be able to decide cases however they want — rather than as the Framers specified in the Constitutional text. In this case, a service member had his cell phone unconstitutionally searched and seized, and our brief explains how the property principles were violated, based on a textual and contextual analysis of the Fourth Amendment.
CLDEF’s brief supporting the Trump Travel ban in the Fourth Circuit is mentioned in this article.