Ep. 20 / The DFL’s speech code will fail in court

James Dickey discusses portions of House File 3, the omnibus election policy bill, specifically the so-called “deceptive practices” part of the bill.

Minnesota Law Weekly | Ep. 20 

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Transcript

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I am James Dickey, Senior Counsel for the upper Midwest Law Center. Minnesota is nonprofit public interest law firm that fights for liberty and the rule of law. Welcome back to Minnesota law weekly, where we update you on important developments on legal issues in Minnesota. And how we at UML see are your voice fighting for you in the courts. Today we are talking about portions of House File three, 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 decision 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 the Upper Midwest last Senator got involved. First, the deceptive practices portion of House File three, 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 one intends to impede or prevent another person from exercising the right to vote, and two knows to be materially false. It explicitly includes statements about, quote, the qualifications for or restrictions on voter eligibility at an election. It also allows the Attorney General and elected partisan official to sue individuals whom 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 10s of 1000s of dollars. We pointed out before, but our concern centers on the provision that says that qualifications for voter eligibility are subject to the speech code. Well, since our previous episode, the author of the bill representative 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 newspaper and explain how the Constitution doesn't allow this. And guess what Representative Greenman did in response, she attacked the Upper Midwest law center instead of responding to the substance of the argument. When the author of a 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 at the upper Midwest Law Center do. Another part of how smile three, which has garnered lots of attention is the provision which redefines what a foreign influence Corporation is, and prohibits so called foreign influence corporations from spending any money, whether a direct contribution, or an independent expenditure to a PAC, for example, to promote or defeat a candidate for office, promote or defeat a ballot question or support a political committee, political fund or political party unit. The new law defines a foreign influence Corporation as one where a single non US person owns 1% or more of the company, or where two or more foreign investors in aggregate, own 5% or more of the company. So what's the deal with this? Well, federal law 52 United States Code 30121 and 11 Code of Federal Regulations 300 point 35 already banned 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 in 2010. didn't touch that. But there are conceivably lots and lots of companies in the United States, which foreign people own more than 1% of the company, or were 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 to prove they live in the United States. So suddenly, even publicly traded corporations not controlled in any way shape or form 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 is an end around to the Citizens United holding, which is that corporations can spend money on independent expenditures, and it likely makes the new law unconstitutional. But perhaps the most unsurprising and troubling thing about this law, public sector, labor unions, the teachers union asked me, SEIU and so on, are not impacted at all. Take a look at this clip from a committee debate on this part of the bill, where representative Peggy Scott is the author, Representative greement. About whether labor unions are exempt. Representative agreement and Madam Chair. Does this bill affect labor unions and nonprofits that might have foreign influence represent freedmen? Thank you, Madam Chair. And thank you, Representative Scott and I that was a conversation that we had in elections. At the current time it doesn't. 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 Minnesota and asked me Council five were the largest donors to the DFL in the last election cycle. In addition, Education Minnesota PAC asked me national SEIU Minnesota State Council asked me Council five and the MAPE political fund spent $11.7 million in independent expenditures in the 2022 election cycle. That's about 1/6 of the total outside expenditures, supporting 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 US Supreme Court decision in the Janus case, 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 and grievances and the like if they stopped paying dues. But 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. And one would think that if stopping corporate corruption were the purpose of the bill, that it would also stop those who are holding it in concentration like public sector labor unions, yet somehow these entities are entirely exempt from the new law. Well, how about some good news, we hit the upper Midwest loss 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 them 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. And now 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 judges decision, the Department of Employment and Economic Development itself agreed with us that the decision below was wrong. The Court of Appeals then reversed both denials of unemployment benefits, and those two individuals have now received what was owed to them under the law as well. So far, then we at Upper Midwest Law Center are for no in these cases, with three more to be decided by the Minnesota 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 loss center by visiting UML c.org. And you can also make a confidential tax deductible donation on our website, or by sending us a check to 8421. Why is it a Boulevard Suite 300 Golden Valley, Minnesota 554 to six and we would urge you to do that. We are a fully donor supported organization 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.