Disclosure regs a Trojan horse to kill political speech, expert says
Keep your mouth shut.
That’s what the New York State Board of Elections effectively is demanding with the enactment of its “emergency regulations,” rules wearing the guise of increased campaign disclosure while slitting the throat of free speech, according to a national campaigns and elections expert.
And while New York’s restrictions on free speech may be among the more egregious, they are merely part of a national effort to control who says what, according to Scott Blackburn, research fellow at the Center for Competitive Politics.
“Intended to regulate spending by independent groups during campaign season, the regulations are so expansive that almost anyone, citizen or organization, hoping to have their say on any issue could find themselves in bureaucratic dire straits,” Blackburn wrote in a New York Post op-ed piece published last week.
Any individual or group that fails to disclose a so-called independent expenditure as spelled out in the “Emergency Regulations Relative to Independent Expenditure Reporting,” adopted by the board in May, is subject to a $1,000 fine or “up to the cost of the communication (advertisement), whichever is greater,” the rules state.
The Board of Elections did not return phone calls and messages from Watchdog.org seeking comment.
Blackburn, in his opinion piece puts the matter in context:
Take for instance, he said, a citizen who, outraged by a state representative’s claims of cutting taxes, hands out hundreds of flyers with a photo of the politician and a brief statement about his voting record at local sporting events.
“While most would applaud you for performing your civic duty and educating the public about a dishonest politician, the New York State Board of Elections could now fine you at least $1,000,” Blackburn wrote.
“Why? Because you failed to register as a political committee, complete the appropriate paperwork for filing an ‘independent expenditure,’ list your donors and your treasurer and provide copies of your flyer to the board for its stamp of approval.”
The Center for Competitive Politics, an Alexandria, Va.-based nonprofit with a mission is to “to promote and defend citizens’ First Amendment political rights of speech, assembly, and petition,” asserts there are manifold constitutional issues with New York’s emergency disclosure regulations.
In a comment written to the New York Elections Board, the center warned of “unforeseen constitutional and practical consequences of these changes to New York campaign finance law.”
“CCP’s most significant concern with the Regulations stems from their tendency to increase, rather than limit, vagueness regarding what speech qualifies as an independent expenditure,” the nonprofit wrote. “… the Regulations make it significantly more difficult for speakers to determine, in advance, whether their desired speech will be an independent expenditure.”
Instead, the new regs muddy the state’s previous crisper standard, which was formerly rooted in the U.S. Supreme Court’s rulings in recent years expanding political speech and unhitching what the court found more onerous First Amendment burdens, CCP asserts.
Such standards seem to superimpose protected issue advocacy, or communications that advocate for or against policy, onto express advocacy, ads that specifically support or oppose a campaign. Such laws most recently in Wisconsin have been declared unconstitutional.
Blackburn said the disclosure regulations, which could move from “emergency” enactment to permanent statute, would be quashed as have others. Until then, New York taxpayers will pick up the expense of legal challenges, as independent political speech faces a government-sanctioned chilling effect.
“The end result? Politicians can worry less about taking actions that might offend their constituents, because fewer amateurs will be able to speak out against crony deals, crummy tax laws, environmental problems and innumerable other bad policies,” Blackburn wrote in the New York Post column.
“That may be great news for incumbents, but it is terrible news for New Yorkers who want a free and open democracy,” he added.
Open democracy is precisely what supporters of such campaign finance disclosure laws say they are going for — and they’ve been going for it nationally since the U.S. Supreme Court’s CitizensUnited decision four years ago.
Congressional Democrats have been pushing the bulky, Democracy is Strengthened by Casting Light on Spending in Elections, or DISCLOSE Act, since the days following Citizens United.
“This is a major step in pulling back the curtain on the outlandish and unfair spending practices corrupting our nation’s political process,” said U.S. Sen. Patty Murray, D-Wash., in a 2012 speech on the Senate floor.
At its core, the DISCLOSE Act is supposed to “enhance disclosures and disclaimers in campaign spending by corporations and special interest groups.”
But the bill, moving through the Senate again this summer, is less about transparency than it is about Democrats silencing their “political opponents,” according to a host of critics.
“While other efforts to achieve this goal have been struck down as unconstitutional by the courts, the majority has attempted to use disclosure as a means to erect a new regulatory scheme to silence their opponents,” U.S. Sen. Pat Roberts, R-Kan., the ranking member of the Senate Committee on Rules and Administration, said last month during a hearing.
“That is what happens once the Congress starts imposing speech restrictions — the restrictions get applied to whoever doesn’t have enough votes in Congress to prevent them,” Roberts said.
Blackburn, of the Center for Competitive Politics, couldn’t agree more. Neither party has had a lock on restricting First Amendment rights in the name of political expediency over the years.
“Republicans supported campaign finance reform against bundling (contributions), and now it looks like these independent expenditures are seen as destructive by Democrats because Republicans are benefiting from them,” he said.
Democrats are catching up, though. The Center for Responsive Politics reports that liberal organizations have accounted for 40 percent of spending by groups that do not disclose their donors in this election cycle.
The issue of special interest money in politics, and the left’s scary “dark money” narrative poll well, Blackburn said. So protected political speech will continue to be used as fodder for politics in the years ahead.