A Brief Victory For Political Free Speech

A recent federal court decision has grassroots political activists briefly clinking their champagne glasses. Republicans should be taking notes. While the last decade’s campaign finance statutes have almost exclusively benefitted unions and liberal causes, recent and pending litigation may finally turn the tide in favor of center-right constituencies.

On May 26, U.S. District Judge Stephan Mickle struck down Florida’s highly restrictive electioneering communications law. The ruling frees community groups to speak freely about candidates and issues without being bogged down in bureaucratic red tape.

Under the law, any group referencing a candidate or ballot issue on any public newsletter or website was required to register with the government and report all spending and donors, including those whose support was never intended to result in political speech. Individuals were required to register after spending just $100 on any political issue. Any failure to comply could have resulted in fines and jail time.

Mickle’s ruling chided Florida’s legislature for its brazenness. "While it is true that the legislature has the power to regulate elections, it does not have the power to regulate purely political discussions about elections," he wrote.

Florida’s aggressive approach is far from isolated. Legislatures across the nation passed similar statutes in the aftermath of the 2003 U.S. Supreme Court’s decision in McConnell v. Federal Elections Commission, which upheld strict restrictions on electioneering communications and soft money.

Through McConnell, The Court upheld the constitutionality of 2002’s controversial Bipartisan Campaign Reform Act, saying its restraints on free speech were limited and that the government had a legitimate interest in preventing “both the actual corruption by large financial contributions and…the appearance of corruption.” Under the law, corporations, unions and non-profits were prohibited from directly advertising or advocating in favor of candidates or issues up to 60 days before a general election.

Mickle’s decision could have a dramatic impact on the case’s plaintiffs and may motivate worthy litigation in other states. Representing the ragtag team of activists bringing the suit was the Institute for Justice. As IJ’s Lisa Knepper recently noted, the decision means “the all-volunteer Broward Coalition can continue to discuss ballot issues of concern to the community in its newsletter and on its website [and] the UF College Libertarians can continue to advertise campus events with local politicians and distribute fliers about ballot issues to university students.”

Before the U.S. Supreme Court now is a case holding the promise of chipping away at other unjust speech regulations. On May 24, justices heard arguments concerning whether a movie critical of Hillary Clinton’s presidential bid should be subject to McCain-Feingold’s electioneering restrictions. While the movie’s backers sought to air it on a cable network in 2008, the Federal Election Commission prohibited the move by the non-profit corporation.

Before the Court, government lawyers proclaimed that the 90-minute movie, titled Hillary: The Movie should be treated as a political advertisement subject to regulation. Ted Olsen countered for the plaintiffs, saying, "The government cannot [prove that] a 90-minute documentary made available to people who choose affirmatively to receive it [is electioneering]. Indeed, this documentary is the very definition of robust, uninhibited debate about a subject of intense political interest that the First Amendment is there to guarantee."

Justices Scalia and Alito questioned whether books could also be subject to McCain-Feingold, with Justice Breyer saying it came down to who is paying for publication; if corporate funds are used for publication within the 60-day window, the release of movie or book deemed as engaging in express advocacy could be blocked.

While liberal advocacy groups have long espoused a commitment to the First Amendment, they are now are pouncing on efforts to protect political free speech. On the Campaign Legal Center’s blog, Tara Malloy and J. Gerald Hebert recently proclaimed the growing national movement to protect the voice of grassroots activists as something to be feared.

“Emboldened by the conservative majority in the U.S. Supreme Court, ideological and interest group opponents of campaign finance regulation have brought an unprecedented number of cases in the past year to challenge campaign finance laws at the federal, state and municipal levels,” they wrote.

But campaign watchers, including election law expert and former Republican lawmaker Rob Witwer, tie the reform efforts to more noble intentions. “Campaign finance reform was billed as a way to get big money out of politics,” he said. “In reality, it’s amplified the influence of mega-donors. It’s a classic case of unintended consequences.”

In Witwer’s home state of Colorado, state-level campaign finance laws have significantly restricted the ability of citizens and conservative groups to contribute financially while providing unions almost unlimited power in the process. The result: while prior to the 2004 elections Republicans controlled both state legislative houses, the governor’s mansion, five of seven congressional seats, and both U.S. Senate seats, Democrats have taken over every elected statewide and federal seat, with the exception of attorney general and two congressional seats.

Colorado limits individual contributions to legislative candidates to $400. Small donor committees, utilized almost exclusively by unions who often use member dues without permission, can contribute up to $4,000 to each candidate. While Democrats see tens of or even hundreds of thousands of dollars in union cash pumped into their campaign coffers, Republicans must religiously work the phones with small donors to bring in the cash. In addition, think tanks and other non-profit groups must also get tangled up in red tape.

In a case now before the Colorado Supreme Court, the Independence Institute (where I am a policy analyst) is challenging an alleged mandate requiring think tanks to register as an “issue committee” before speaking out on political issues.

The source of contention: in 2005, the institute ran radio ads criticizing two ballot initiatives seeking to gut limits on government spending. Opponents filed a complaint against the institute for failing to register as an “issue committee: or disclose donor names; under Colorado law, such committees are defined as any group that raises or spends more than $200 in support or opposition of a ballot issue with a “major purpose” of doing so.

While the institute has spent more than $50,000 on litigation, it’s a battle worth fighting. If think tanks are required to register with the government every time they speak on political issues, the chilling effect will be immense.

As Jon Caldara, the institute’s president noted, “Think tanks like ours must either be quiet or worry about being prosecuted. The [court] must take seriously its responsibility as a protector of our constitutional rights. All Americans have the right to freely express themselves. We should have to register with the government before we speak.”

The Independence Institute isn’t alone in its battle. Six neighbors who opposed their neighborhood’s annexation into a nearby Colorado city were also sued after failing to register with the government after they joined together to make yard signs and flyers, and to speak to neighbors in opposition to the annexation. Registration is a cumbersome task. A state manual explaining the process is a full 98 pages.

If the government can regulate which books or movies can be released prior to an election, what a non-profit can say about a tax issue, and if it can force ordinary citizens to register prior to speaking to neighbors, none of us are free. Couple this with an almost unlimited union power to fund campaigns, and the problem is clear. Conservatives must get out their checkbooks and fight back in the courtroom.