James Dickey: The DFL’s speech code will fail in court

When the author of the bill can’t come up with anything other than an ad hominem, personal attack, you know there’s no defense.

Alpha News

Today, we are talking about portions of House File 3, the omnibus election policy bill, which we have already discussed in part on this program. Today, we will take a closer look at the so-called “deceptive practices” part of the bill. We will also look at the Legislature’s change to campaign finance law to work around the 2010 Supreme Court case in Citizens United. Last, we will update you on some victories for Minnesota employees who were initially denied unemployment benefits, but who obtained a reversal after Upper Midwest Law Center got involved.

Deceptive practices or just a plain old unconstitutional speech code? 

First, the deceptive practices portion of HF 3. We told you before on our program that this part of the bill is unconstitutional, and it still is. It makes it a crime punishable by up to a year in jail or a $3,000 fine for a person to make any sort of statement, within 60 days of an election, if the person “(1) intends to impede or prevent another person from exercising the right to vote; and (2) knows to be materially false.” It explicitly includes statements about “the qualifications for or restrictions on voter eligibility at an election”. It also allows the attorney general — an elected partisan official — to sue individuals who he believes violated the law. This provision would allow county attorneys and the AG to hit alleged violators with attorney fee awards which would be tens of thousands of dollars.

We pointed out before that our concern centers on the provision that says that qualifications for voter eligibility are subject to this speech code. Well, since our episode, the author of the bill, Rep. Greenman, literally confirmed that those who oppose felon voting and want to say “you’re a felon and you can’t vote” will be prosecuted.

We raised our concerns to the local Minnesota Reformer and explained how the constitution doesn’t allow this, and guess what Rep. Greenman did in response? She attacked the Upper Midwest Law Center instead of responding to the substance of the argument.

When the author of the bill can’t come up with anything other than an ad hominem, personal attack, you know there’s no defense. And since the First Amendment requires evidence that this bill is actually necessary to stop people from literally preventing another person from voting, this part of the new law will easily be struck down in the courts. It will just take a lawsuit to do it, and that’s what we do.

The Citizens United workaround 

Another part of HF 3 which has garnered lots of attention is the provision which redefines what a “foreign influenced corporation” is and prohibits so-called foreign-influenced corporations from spending any money, whether a direct contribution or an independent expenditure (to a PAC, for example) to (1) promote or defeat a candidate for office, (2) promote or defeat a ballot question, or (3) support a political committee, political fund, or political party unit.

The new law defines a foreign-influenced corporation as one where a single non-U.S. person owns 1% or more of the company, or where two or more foreign investors in aggregate hold 5% or more of the company.

So what’s the deal with this? Federal law, 52 United States Code 30121 and 11 Code of Federal Regulations 300.35, already bans foreign nationals from making any contributions to candidates or any independent expenditures, to a PAC for example. Federal law also limits corporate contributions to candidates, and Citizens United didn’t touch that.

But there are conceivably lots and lots of companies in the U.S. which foreign people own more than 1% of the company, or where several foreign investors own 5% or more of the company, and perhaps every publicly traded company. And the Securities and Exchange Commission does not require 1% owners to verify their current address. Suddenly, even publicly traded corporations not controlled by any foreign national will be banned from speaking on Minnesota elections, because they can’t certify the status of every owner of a share. This appears to be an end-around to Citizens United’s holding, which is that corporations can spend money on independent expenditures. And it likely makes the new law unconstitutional.

Perhaps the most unsurprising and troubling thing about this law: public sector labor unions — the teachers union, AFSCME, SEIU, and so on — are not impacted at all. Take a look at this clip (1:11:16-1:11:41) from a committee debate on this part of the bill, where Rep. Peggy Scott asks the author, Rep. Greenman, about whether labor unions are exempt.

That’s right, labor unions are exempt.

This is an interesting thing, because as many Minnesotans know, public sector labor unions are huge contributors to the DFL Party. As Center of the American Experiment reported, Education MN and AFSCME Council 5 were the largest donors to the DFL in 2022.

In addition, Education MN PAC, AFSCME National, SEIU MN State Council, AFSCME Council 5, and MAPE Political Fund spent $11,700,000 in independent expenditures in the 2022 election cycle. That’s about 1/6 of the total outside expenditures for the DFL party.

As many of you know, public sector unions get tons of money from dues deductions from public employees, who are also paid with tax dollars. Significant portions of those dues go to the PACs funded by those unions. And even though the 2018 Janus decision by the U.S. Supreme Court gave public employees the right to pay the union nothing, many public employees remain union members because they fear the union or think they won’t get help in grievances and the like if they stop paying dues. This is not true, because public sector unions have a duty to fairly represent every member of the bargaining unit regardless of dues-paying status. It’s part of the deal for being the exclusive bargaining representative. The result is big money in the hands of a huge entity to influence elections.

Yet, somehow, these entities are entirely exempt from the new law.

Unemployment victories

How about some good news? We at the Upper Midwest Law Center have represented seven different individuals in situations where they were terminated from their job for refusing to get vaccinated for COVID-19 because of their religious beliefs, and then the unemployment department denied them benefits, claiming that following their religious beliefs is “employment misconduct.”

For two of these individuals initially denied, we represented them before the unemployment law judge, and in both cases, we won the initial appeal and they were awarded benefits. For two others, we jumped in after the denial of benefits and appealed their case to the Minnesota Court of Appeals. For both of these individuals, after reviewing the unemployment law judge’s decision, the Department of Employment and Economic Development agreed with us that the decision below was wrong. The Court of Appeals reversed both denials of unemployment benefits, and those two individuals have now received what was owed to them as well.

So far, then, we at UMLC are 4-0 in these cases, with three more to be decided by the Court of Appeals. Given that the religious beliefs of the others awaiting a decision are very similar to the first four, it would only be right for the Court to afford them the same treatment under the law. We look forward to those decisions.

That’s it for this week on Minnesota Law Weekly. You can learn more about the Upper Midwest Law Center by visiting umlc.org, and you can also make a confidential, tax-deductible donation on our website or by sending us a check to 8421 Wayzata Blvd., Suite 300, Golden Valley, MN 55426. And we would urge you to do that. We are fully donor supported and charge our clients nothing. And we are standing up for you in court and want to fight for you on every front. Help us do more for you by making a donation today. Thank you, and we’ll see you next week.

This is a transcript from the Upper Midwest Law Center’s Minnesota Law Weekly podcast, lightly edited for brevity and clarity. Subscribe to the podcast here.


James Dickey