When asked about the U.S. Supreme Court's decision to reject the Independence Institute's appeal of a decision involving issue ads mentioning Senator Michael Bennet and ex-senator Mark Udall, Jon Caldara, the think tank's president, says, "I blame all the people who murdered Antonin Scalia."
No, Caldara isn't among the loony conspiracists who actually believe that Scalia, a conservative stalwart on the court who died in his sleep at age 79 circa February 2016, was assassinated by stealthy liberals. But beneath this joke is a serious point. The Independence Institute's appeal failed because not enough Supreme Court justices agreed to hear the case — four must sign on to what is technically known as a writ of certiorari, shorthanded as cert — and as a result, a 2014 decision against the organization by the U.S. District Court for the District of Columbia was allowed to stand. But Caldara is confident that if Scalia were still alive, or if Colorado-born Neil Gorsuch, recently nominated to the Supreme Court by President Donald Trump, had been confirmed and was filling the currently vacant seat, cert would have been granted and the Institute would have emerged victorious.
In Caldara's mind, the question at the heart of the Independence Institute's 2014 lawsuit against the Federal Election Commission is, "When do you lose your First Amendment rights? And should your First Amendment rights be subservient to a calendar?"
To explain: So-called "issue ads" that don't specifically weigh in for or against a particular office-seeker can be broadcast without their creators being required to reveal who paid for them. But for spots that mention a candidate within sixty days of an election, the FEC requires that funders be identified. Because Udall was running in 2014, the Independence Institute needed to either omit his name or disclose its donors under the rules. But Caldara and company didn't want to do either.
"As an organization, we have the right to speak out on issues and speak out to elected representatives," he notes. "If we wanted to put out something and mention our senators by name, that's fine — until the magic number of sixty days before an election. Then, all of a sudden, our First Amendment right is gone. And I've always thought that if you have a right of free speech on Monday, you should have the same right on Tuesday."
Regarding disclosure, Caldara says, "The reasons we don't release the names of our donors is the same reason lots of groups like ours don't: political retribution. We have donors who are government school teachers, and if the union found out, it could ruin their lives. If people knew certain businessmen gave us money, their dealings could be in jeopardy."
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He underscores this point in a more vivid way with a reference to Robert Dear, who killed three people and injured nine others during an attack on a Colorado Springs Planned Parenthood branch in November 2015. "Would it have been better if this madman had known the names and addresses of people who funded Planned Parenthood?" he asks. "The answer is no."
The district court didn't buy such arguments, and not enough of the eight Supreme Court justices practicing right now were willing to consider it. To Caldara, that one vacant seat made all the difference.
"If Scalia was still on the job, we would have been granted cert," he allows. "Or if Gorsuch was on the bench, we would have gotten in."
Cue the conspiracy theories.