Litigation

We engage in legal advocacy in the courts and before government agencies to fight for free and fair elections and hold power accountable.

Featured Cases

The Case that Could End Super PACs: Lieu v. Federal Election Commission

Free Speech For People and an all-star team of legal scholars are representing a bipartisan coalition of Members of Congress and 2016 congressional candidates in a lawsuit challenging an earlier lower court decision that created super PACs.  The lawsuit, now in the federal court of appeals in Washington, D.C., seeks the reversal of the 2010 federal appeals court ruling in SpeechNow.org v. FEC, which created super PACs. We are honored to represent Senator Jeff Merkley (D-OR) and Representative Ted Lieu (D-CA-33), as well as the late Representative Walter Jones (R-NC-3), along with three 2016 congressional candidates from both major parties. Read more.

Demanding Access to Election Security Emails: National Election Defense Coalition v. Lawson

Free Speech For People is representing the National Election Defense Coalition (NEDC) in a lawsuit seeking to uncover communications about election security to and from the National Association of Secretaries of State. The lawsuit under the Indiana Access to Public Records Act charges the Indiana Secretary of State, Connie Lawson, with unlawfully denying access to public records regarding the reliability and security of voting machines. Read more.

Illegal Hush Money Payments to Benefit the Trump Campaign: Free Speech For People v. Federal Election Commission

Free Speech For People is suing the Federal Election Commission for failing to investigate a $150,000 “hush money” payment made in 2016 to Karen McDougal, one of President Trump’s former mistresses, as a potential violation of federal campaign finance law. The investigation is necessary because, even after federal prosecutors have investigated some of the parties involved, critical questions remain unsettled—including the exact nature of President Trump’s role. Read more.

Amicus Briefs

Insecure Voting Machines: Shelby County Advocates for Valid Elections v. Hargett

We represent the National Election Defense Coalition and experts in computer science from around the country as friends of the court in a case concerning the security of election technology in Shelby County, Tennessee (the state’s largest). We argue that the county’s use of AccuVote TSx direct-recording electronic voting machines is disenfranchising citizens through software errors and remains susceptible to hacking by domestic and foreign actors. Read more.

Abuse of the Pardon Power: United States v. Arpaio

Free Speech For People is part of a coalition of organizations asking the courts to reject the presidential pardon of former Maricopa County, Arizona sheriff Joseph Arpaio as unconstitutional and invalid on the ground that it violates the constitutional guarantee of due process of law. Meanwhile, Arpaio is seeking to have his conviction vacated entirely. The Department of Justice has refused to defend the government against Arpaio’s appeal, so at our request,  the U.S. Court of Appeals for the Ninth Circuit has appointed a special prosecutor to represent the interests of the United States. Read more.

Corporate Climate Fraud: Exxon Mobil Corp. v. Healey

The Massachusetts and New York state attorneys general are investigating whether Exxon committed fraud by misleading shareholders and consumers. Exxon has challenged the investigations in both federal and state court, claiming that the investigations violate its supposed constitutional rights. We represent a group of law professors as friends of the court in opposing Exxon’s claim that the investigations violate the First Amendment. Read more.

Administrative Docket

Insecure Voting Machines: Petition to Re-Examine ExpressVote XL

Free Speech For People, working with the National Election Defense Coalition and Pennsylvania’s Citizens for Better Elections,  filed a petition on behalf of 200 registered Pennsylvania voters with the Pennsylvania Secretary of the Commonwealth seeking re-examination of the ES&S ExpressVote XL electronic voting machine. These machines have been certified for statewide use, and were approved for purchase in Philadelphia on February 20, 2019. According to the petition, the voting machines fail to meet the state’s election standards. Under Pennsylvania law, the Secretary of the Commonwealth is required to re-examine the machines upon proper request. Read more.

Foreign Interference in our Elections: Free Speech For People v. Government of Russia and Donald J. Trump for President, Inc.

In December 2016, we (along with the Campaign for Accountability) filed a complaint with the Federal Election Commission against the Russian government and the Trump campaign. The complaint alleges that the Russian government had violated the Federal Election Campaign Act by spending money to influence the 2016 presidential election, and further provided evidence indicating the need to investigate whether the Trump campaign had coordinated with the Russian government. Some of the questions at issue in our complaint were addressed by the Mueller report, but many others are still unanswered. Read more.

Political Spending by Foreign-Influenced Corporations: Free Speech For People v. Citgo Petroleum Corp., Petróleos de Venezuela, and 58th Presidential Inaugural Committee

We filed a complaint with the Federal Election Commission after Citgo made a $500,000 contribution to President Trump’s inaugural committee. The only restriction on contributions to presidential inaugural committees is that they may not come from foreign sources. Since 1990, Citgo has been a wholly-owned subsidiary of Petróleos de Venezuela, S.A. (PDVSA), a Venezuelan state-owned oil company. PDVSA, and the Venezuelan government, have long used Citgo for political purposes in the United States. If the Venezuelan government isn’t allowed to donate directly to Trump’s inaugural committee, then it shouldn’t be able to make that same donation through Citgo. Read more.

Past Cases

Fighting for free and fair elections
Success! Challenging insecure voting machines: Heindel v. Andino 

We represented the National Election Defense Coalition and experts in computer science from around the country as friends of the court in a case concerning the security of election technology in South Carolina. We argued that the state’s use of iVotronic direct-recording electronic voting machines is disenfranchising citizens through software errors and remains susceptible to hacking by domestic and foreign actors. After the appeal was fully briefed, South Carolina’s State Election Commission announced that it had entered a contract to purchase new voting machines that would replace the iVotronic machines statewide.  The new systems have been delivered (and the iVotronic machines removed) in most of the state, and the rollout is on track to be complete before 2020. Read more.

Defending campaign finance laws
Victory! Defending small donor public financing: Elster v. City of Seattle

Demos and Free Speech For People represent a coalition of local and national organizations that helped pass Seattle’s “democracy voucher” program, a nationally-recognized public campaign financing system enacted by voter initiative in 2015 and first used in the city’s 2017 election. Our joint amicus brief helped defend the city against a constitutional challenge in Washington state court by property owners. As our brief argued, the democracy voucher program serves important First Amendment interests in strengthening local democracy in Seattle by combating corruption, increasing political access and participation for low-income people and people of color, and enabling candidates to fund their campaigns without relying on out-of-town donors. The Washington Supreme Court upheld the initiative. Read more.

Victory! Defending limits on corporate contributions: 1A Auto, Inc. v. Sullivan

We celebrated a victory as the U.S. Supreme Court declined to hear 1A Auto, Inc. v. Sullivan, a challenge to a Massachusetts state law banning corporate contributions to political candidates. Free Speech For People worked with Common Cause Massachusetts on an amicus brief in the state supreme court. This case is important for several reasons. First, the case was clearly conceived by the Goldwater Institute not just as a challenge to a Massachusetts statute, but as a vehicle to try to persuade the U.S. Supreme Court to strike down bans on contributions from corporations to candidates. Second, we succeeded in complicating the case to keep it out of the Supreme Court. And finally, looking forward, the Massachusetts court’s decision lays additional legal groundwork in an important concurring opinion. Read more.

Victory! Defending Montana’s campaign contribution limits: Lair v. Motl

Free Speech For People filed several “friend of the court” briefs to the U.S. Court of Appeals for the Ninth Circuit, arguing that Montana’s campaign contribution limits should be upheld to protect the constitutional promise of political equality for all. Joining Free Speech For People in the filing of this brief are: the Honorable James C. Nelson, a retired Justice of the Montana Supreme Court and a member of Free Speech For People’s Board of Directors; the Indian Law Resource Center; the American Independent Business Alliance, and the American Sustainable Business Council. The case took a winding path back and forth between the district court in Montana and the Ninth Circuit. In October 2017, the Ninth Circuit upheld the contribution limits, and in January 2019, the U.S. Supreme Court declined to hear the case. Read more. (And to read more on our work defending Montana’s Corrupt Practices Act, click here.)

Victory! Defending a ballot initiative in support of a constitutional amendment to overturn Citizens United: Howard Jarvis Taxpayers Association v. Debra Bowen, California Secretary of State

Free Speech For People, along with MOVI, California Clean Money Campaign, CalPIRG, Common Cause California and Courage Campaign, filed an amicus brief before the California Supreme Court in defense of California Proposition 49, also known as the Overturn Citizens United Act. Our brief focused on a provision in the California Constitution providing that the people have a right to “instruct their representatives.” The history of this provision, and of the contemporaneous practice of the California Legislature, demonstrates that it was intended to allow questions like Proposition 49. The California Supreme Court upheld Proposition 49. The legislature placed it on the ballot for 2016, and the measure passed by a solid margin.   [Download PDF]

Victory! Defending limits on judicial candidates personally soliciting campaign contributions:  Williams-Yulee v. The Florida Bar

On December 19, 2014, Free Speech For People and retired Montana Supreme Court Justice James Nelson (a member of Free Speech For People’s Board of Directors) filed an amicus brief before the U.S. Supreme Court in Williams-Yulee v. The Florida Bar in defense of a Florida campaign finance rule for judicial elections. In May 2015, the U.S. Supreme Court ruled in defense of the Florida State bar, upholding state laws that prohibit elected judges from personally soliciting donations to support their campaigns. The Court rejected in a 5-4 decision, a free speech claim brought forward from a Florida judge, recognizing the importance of maintaining the dignity appropriate to judicial office.

Our brief argued that the US legal system depends on public respect for judges and courts, and that therefore the states have a compelling interest in protecting the dignity of the judiciary. This ruling further helps support the public’s confidence in the judiciary. [Download PDF]

Victory! Defending rules against “pay-to-play” for public fund investment advisers: New York Republican State Committee v. SEC

On August 29, 2014, we filed an amicus brief in the U.S. District Court for the District of Columbia in support of the Securities and Exchange Commission’s anti-“pay-to-play” rule for investment advisers, which prevents investment advisers from receiving management fees from public funds when they have given political contributions to the elected officials who influence the choice of investment advisers for those funds. Our brief argues that the rules protects the First Amendment rights of public employees by preventing investment advisers from using a portion of their pension money to pay for political spending.  In March 2015, Free Speech For People submitted a brief in support of the Securities Exchange Committee in the U.S. Court of Appeals for the District of Columbia Circuit. [Download PDF]

Split Decision – Defending Alaska’s Contribution Limits: Thompson v. Hebdon

On July 26, 2017 we filed an amicus brief, along with Prof. David Fontana of George Washington University Law School, arguing that an Alaska campaign finance limit should be upheld because it serves a compelling government interest in democratic self-government. On November 29, 2018, the Ninth Circuit rejected that argument (over Chief Judge Thomas’s dissent) and struck down the limit. [Download PDF]

Defending corporate disclosure laws against First Amendment challenges

Defending Vermont’s GMO labeling law: Grocery Manufacturers Association v. William Sorrell, Attorney General Vermont

On November 14, 2014, we filed an amicus brief before the federal district court in Vermont in defense of Vermont’s recently-passed law requiring the labeling of food produced with genetic engineering. Major agribusinesses and industrial food manufacturers and processors, represented by the Grocery Manufacturers Association, the Snack Food Association, the International Dairy Foods Association, and the National Association of Manufacturers, have challenged the law under the First Amendment, claiming that it forces them to “speak” against their will. Our brief sets forth fundamental First Amendment principles, and argues that food labeling requirements do not merit the full protection of the First Amendment. The First Amendment was designed to protect democratic participation in self-government and promote individual autonomy of expression, not to exempt commercial vendors from labeling requirements. In fact, Vermont’s law promotes First Amendment values by giving Vermonters accurate and useful information that enables them to exercise their autonomy by making informed purchasing decisions. The state prevailed in district court, and in 2015, we filed an amicus brief in support of the state in the Court of Appeals for the Second Circuit. [Download PDF]

Defending a law requiring publicly-traded corporations to disclose whether their products use “conflict minerals”: National Association of Manufacturers, et al. v. SEC

We joined Global Witness Limited in an important brief  pushing back against a First Amendment claim by the National Association of Manufacturers and other corporate interests. The companies challenge a federal law requiring publicly-traded corporations to disclose whether their products use “conflict minerals” from the war-torn Democratic Republic of the Congo. This would help investors and customers understand which companies trade in conflict minerals that may benefit armed warlords. But the companies claim that this disclosure forces them to “speak” against their will. Our joint brief argues that these factual disclosures do not violate the First Amendment. [Download PDF]

Pushing back against corporate abuse of the Constitution

Victory! Defending a living wage law against a corporate equal protection challenge: International Franchise Association v. City of Seattle

Free Speech For People, Courage Campaign, Equal Justice Society, and Demos filed a brief on May 22, 2015, in the U.S. Court of Appeals for the Ninth Circuit in defense of Seattle’s living wage law. In International Franchise Association v. City of Seattle, franchised businesses allege that Seattle’s living wage law violates their alleged constitutional rights. Our amicus brief, which cites historical legislative history, indicates that Seattle’s living wage law (which has enormous positive impact on racial minorities) fulfills, rather than violates, the Fourteenth Amendment.

Victory! Defending a living wage law against a corporate equal protection challenge: American Hotel & Lodging Association v. City of Los Angeles 

Free Speech For People, Courage Campaign, Equal Justice Society and Western Center on Law and Poverty, filed an amicus brief in support of the City of Los Angeles and its new hotel worker “living wage” ordinance against an Equal Protection Clause challenge from the American Hotel & Lodging Association. The suit also contends that the City’s ordinance violates state and federal equal protection clauses by unfairly targeting a single industry.

Our brief argues that the “Citywide Hotel Worker Minimum Wage Ordinance” (Los Angeles City Ordinance No. 183241), which was passed in October 2014, fulfills rather than violates the purpose of the Equal Protection Clause. Citing historical materials from the legislative history of the Fourteenth Amendment, indicating that “fair, living wages” were a central concern of the Reconstruction Congress, we explain how LA’s hotel living wage ordinance will lift thousands of poor workers, mostly people of color, out of poverty, without drawing any distinction or creating any division based on race. [Download PDF]

Adverse decision: Defending a ballot initiative against corporate equal protection challenge: Noel v. Board of Election Comm’rs

Free Speech For People has joined the legal team defending the Take Back St. Louis ballot initiative campaign. This ballot initiative, which would amend the city charter of St. Louis (Missouri) to prevent the city from granting tax breaks to fossil fuel and nuclear mining companies, was challenged in court before the ballots were printed. At the preliminary injunction stage, the judge (citing Citizens United) found that the initiative would violate the Equal Protection Clause of the Fourteenth Amendment, as well as state law. We joined the campaign’s Missouri-based legal team, acted as trial counsel, and wrote a significant portion of the post-trial brief. Unfortunately, the judge continued to rule against the campaign. We helped write the appeal brief, but unfortunately the appeals court upheld the trial court on state law (not constitutional) grounds.

Adverse decision: Defending the Affordable Care Act against a corporate religion challenge: Conestoga Wood Specialties v. Sebelius

The Supreme Court ruled on whether corporations have religious rights under the U.S. Constitution. In Conestoga, a kitchen cabinet manufacturer is claiming that the contraceptive care requirement of the new federal Affordable Care Act violates its First Amendment right to the free exercise of religion. In response, we filed a powerful amicus brief before the Court in which we challenge the claim that corporations practice religion and have free exercise rights like people under the Constitution. The Court declined to reach the constitutional issue, deciding in the related Hobby Lobby case that a federal statute allows corporations to raise these religious challenges. Read our statement on U.S. Supreme Court’s ruling on Conestoga and Hobby Lobby. [Download the PDF]

Adverse decision: Defending Montana’s Corrupt Practices Act against a post-Citizens United challenge: American Tradition Partnership v. Bullock

Soon after Citizens United, the Montana Supreme Court, and then later the U.S. Supreme Court, considered a constitutional challenge to Montana’s law banning corporate political spending in a post-Citizens United challenge. Free Speech For People led a coalition of public interest groups and businesses in the filing of a friend-of-the-court brief before the Montana Supreme Court in defense of the century-old law. The Montana Supreme Court ruled in our favor and upheld the ban. When the challengers appealed to the U.S. Supreme Court, we filed a brief there too. Unfortunately, the Court ignored the specific evidence of corruption from corporate political expenditures in Montana, and extended Citizens United to the states.

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