Tag Archives: First Amendment

Playing Devil’s Advocate: The Constitutional Implications of Requiring Advocacy Organizations to Present Opposing Viewpoints

Alex Reed

For more than sixty years, the Internal Revenue Service has employed a methodology test in determining whether a nonprofit organization’s advocacy of a particular viewpoint is sufficiently educational to warrant its designation as a public charity. The test’s focus is not upon the viewpoint advocated, but upon the method used by the organization to communicate its viewpoint to others. Consistent with this purpose, the Service has identified four factors that are indicative of a noneducational methodology.

The Service’s application of the test, however, suggests the existence of an additional, previously undisclosed factor. This factor regards a refusal to present opposing viewpoints as indicative of a noneducational methodology.

This article concludes that the methodology test is unconstitutional for three reasons. First, the test is void for vagueness because it does not disclose one of the factors considered by the Service in evaluating whether an advocacy organization may be said to employ an educational methodology. Second, the test violates the compelled speech doctrine by requiring advocacy organizations to accommodate the very speech they are organized to oppose. Third, the test imposes an unconstitutional condition by conditioning advocacy organizations’ eligibility to receive tax-deductible contributions on the absolute forfeiture of
their First Amendment rights.

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Nonparticipatory Association and Compelled Political Speech: Consent as a Constitutional Principle in the Wake of Citizens United

Frances R. Hill

Synopsis

In Citizens United, the Supreme Court put non-participatory association and compelled political speech at the heart of campaign finance jurisprudence. In so doing, the Court changed the relationship between organizations and their members by amplifying the political-speech rights of corporations and constraining the associational and political-speech rights of members and shareholders. Members and shareholders no longer have an effective means of giving or withholding consent to the political decisions made by organization managers. Many will find that the money they contributed to or invested in an organization is being used to finance political speech with which they may not agree.

The majority opinion in Citizens United does not address this profound change in the scope of managerial discretion as an element of freedom of association. Furthermore, the Court never asked whether shareholders and members should be considered speakers with protected First Amendment rights. This deficiency is partially a result of the fact that current jurisprudence of association has not acknowledged the rights of those who associate as separate from that of the association to which they belong.

This article explores the relationship between non-participatory association and compelled speech through a framework based on consent as a constitutional principle. The author argues not only that we should treat consent as a constitutional principle, but also that a theory of association consistent with such a principle should consider associations as both entities and aggregates. The author analyzes Citizens United in terms of the failure of associational consent and discusses potential remedies to that failure.

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Citizens United and Equality Forgotten

Mark C. Alexander

Synopsis

In this article, Alexander examines the Supreme Court’s decision in Citizens United, which treats campaign spending by corporations as political speech deserving of strong protection under the First Amendment. Alexander argues that this approach creates a form of vote dilution wherein wealthy individuals and powerful corporations exert a disproportionate amount of control over politics, implicating constitutional concerns under the Guarantee Clause. Furthermore, candidates and elected officials spend an increasing amount of time and energy on campaign fundraising, detracting from their responsibilities as representatives of the people. Alexander argues that freeing up the time of elected officials should be considered a compelling interest and therefore be given weight in the constitutional calculus.

This article explores the reasoning in the Citizens United decision and the history of campaign finance jurisprudence and argues that the Court can remain faithful to the First Amendment without overlooking the danger of debate distortion and vote dilution.

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