Tennesseans for Sensible Election Laws Wins Appeal, State Officials Permanently Barred from Deciding Who Can Speak About Politics and When


Yesterday, a unanimous three-judge panel of the Tennessee Court of Appeals affirmed a ruling by the Davidson County Chancery Court that two of Tennessee’s campaign finance statutes violated the First Amendment to the United States Constitution.  The case, Tennesseans for Sensible Election Laws v. Tenn. Bureau of Ethics and Campaign Fin., et al., originally filed in 2018, set an important precedent that will protect the freedom of all Tennesseans to speak about politics in the critical period before an election for years to come.

The lawsuit, filed by the non-partisan Tennesseans for Sensible Election Laws (TSEL) political action committee, alleged that one state law unfairly and unconstitutionally barred them from making direct financial contributions to favored candidates–a federally protected form of political speech–in the ten days before an election, under threat of criminal prosecution, without imposing the same restrictions on political committees controlled by the Republican or Democratic Parties.

TSEL also argued that another state law unfairly and unconstitutionally required them to pay an annual registration fee to the State of Tennessee that political groups controlled by the two major parties did not have to pay.

The Trial

The State agreed to an expedited trial schedule, given the proximity to Election Day 2018.  However, for whatever reason, and in violation of the Chancery Court’s pre-trial orders, the State’s lawyers withheld exhibits from TSEL, did not disclose the substance of its witnesses’ testimony to TSEL, and attempted to have multiple witnesses testify by affidavit, rather than testifying live in court, subject to cross-examination.

In essence, the State tried to ambush TSEL.

TSEL filed four pretrial motions to block the undisclosed evidence from being admitted at trial and prohibit the State’s witnesses from testifying by affidavit.  The Chancery Court agreed with TSEL that the State had unfairly orchestrated a trial-by-surprise.  As a result of the Chancery Court’s ruling, the State had no admissible evidence to defend the constitutionality of the challenged laws, which the State had otherwise failed to prove served any governmental interest other than silencing politically disfavored, non-partisan speakers.

The Appeal

The State appealed, arguing that the challenged laws were essential to prevent corruption and that its evidence should therefore not have been excluded.  TSEL received the support of the Beacon Center of Tennessee and the Goldwater Institute and Liberty Justice Center, who filed briefs as amici curiae.  The Tennessee Court of Appeals heard oral argument on August 14, 2019.

Then, Christmas came early this year as the Tennessee Court of Appeals affirmed the Chancery Court and issued a whopping 39-page opinion, ruling on the merits of TSEL’s constitutional challenges, agreeing with TSEL and its allies on these important issues, declaring the challenged statutes unconstitutional, and permanently barring Tennessee officials from trying to enforce them.


“The bottom line is simple,” said George Scoville, TSEL’s treasurer and executive director.  “As we have said all along, the State of Tennessee cannot require anyone to put on a red or blue uniform just to take the field in the arena of politics.  Our legal team of Daniel Horwitz and Jamie Hollin really outdid themselves, and we are very pleased with this result.”

“There is no form of expression more essential to self-government than political speech,” said Fred Culver, TSEL’s director of strategy.  “After this crucial victory, we hope that government officials will think twice before try to tilt the political playing field in their own favor.  And if they do try to stack the deck, you can bet that we will be there to try to stop them.”

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