In May of 2009, the Institute for Justice secured a federal court decision striking down Florida’s so-called “electioneering communications” law. That law made it illegal for any group to merely mention a candidate or ballot issue, let alone express an opinion, without registering with the state as an “electioneering communications organization.” Once registered, groups had to appoint a campaign treasurer, make regular reports, record expenditures and disclose all donors—even those whose contributions were not intended to support political speech.
There were almost 100 possible violations of the law, and failure to comply could have led to fines and jail time. The time and money required to navigate this bureaucratic red tape was too much for many citizen groups and non-profits, leaving them no choice but to stay silent. That is why the Broward Coalition, University of Florida College Libertarians and National Taxpayers Union joined with IJ to challenge Florida’s law as a violation of First Amendment rights.
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The Florida Legislature has decided that there is no such thing as free speech in the Sunshine State, at least when it comes to discussions about politics. Stretching its so-called “campaign finance” laws to new and ridiculous lengths, Florida requires any group that merely mentions pending ballot issues and candidates—and spends money to get their message across—to register with the government. And then, such groups must file regular reports, disclose contributor information, restrict their contributions and comply with random audits. Any mistake can result in a fine up to $1,000 and possible jail time.
Florida’s political speech law is not an anomaly; it is simply the leading edge of the frightening growth of government attempts to shut up and shut out ordinary citizens from politics. Such egregious restrictions—in the guise of “campaign finance reform”—violate clear First Amendment principles that say that political speech is entitled to the highest level of constitutional protection. This case, Broward Coalition v. Browning filed in the U.S. District Court for the Northern District of Florida, seeks to ensure that the First Amendment stops the growth of these laws in their tracks.
The Dilemma: Halt Your Political Speech or Submit to Government Regulation
Imagine that you were a volunteer for a non-profit organization dedicated to educating your members and the general public about local, state and national issues affecting your community, but you couldn’t post information about upcoming ballot issues in your newsletter or on your website. Or that you were part of a college group enthusiastically committed to libertarian ideas, but you couldn’t advertise that a local libertarian-minded candidate was coming to talk on your campus. Or that you worked for a national taxpayer group that regularly publishes commentary on tax-related state ballot issues all across the country, but you had to delete any comments regarding Florida’s tax-related ballot issues before going to press.
As each of IJ’s clients can attest, these exact situations are playing out in Florida every day. Under Florida’s “electioneering communications” law, any group of people—a community organization, a group blog, a church or non-profit—that mentions a candidate 1 or an issue on the ballot in a communication that costs money to publish or distribute must complete a wide array of burdensome requirements, including:
· Registering with the government
· Appointing a campaign treasurer
· Designating a depository
· Making regular reports
· Recording expenditures
· Disclosing all donors—even those who never intended their gift to go towards political speech
· Restricting contributions, including not using money raised in the five days before the election, refusing contributions by 527s or 501(c)(4)s that are not—themselves—registered, and refusing all cash contributions over $50
· Allowing random audits by the government
Even a passing reference to a candidate or pending ballot issue is enough for the speech police to decide that the group has become and must register as an “electioneering communications organization.” Under the same law, an individual who spends $100 distributing flyers, postcards, or even taking out an ad in the local paper also has to register her political speech.
In short, Florida is requiring everyone who talks about politics to comply with the same sorts of legal burdens that it imposes on political committees, or PACs. PACs are established specifically to engage in political advocacy and many larger PACs may have the resources—time, money, lawyers and accountants—to help them shoulder these burdens, but ordinary citizens and groups formed primarily for non-political purposes usually don’t.
Faced with these cumbersome and costly regulatory laws, far too many organizations and individuals will simply remain silent and on the political sidelines. The Broward Coalition of Condominiums, Homeowners Associations and Community Organizations, Inc., operating near Ft. Lauderdale, is one such group. This diverse and dynamic group, led by Charlotte Greenbarg, puts out a monthly newsletter dedicated to helping its members and the larger community make decisions about issues that affect them locally, statewide and nationally. In the lead up to the November election, the Coalition had planned to mention some of the issues on the statewide ballot. But with an all-volunteer group and a tight budget, the Coalition cannot afford to spend the time or money to comply with the law. If Charlotte has to do all that extra paperwork and deal with the threat of fines for any errors she makes, she’ll simply stop talking about ballot issues altogether.
Other groups feel the effect of Florida’s “no political speech” zone as well. For groups like the University of Florida College Libertarians, talking about politics is a central focus. But the small group of college students doesn’t even have a budget; they simply all pitch in when they have an expense. If the club has to make reports every time it puts out 1,000 flyers on campus regarding an event with a local candidate, it too will be less likely to speak out.
Moreover, for years, the National Taxpayers Union, based in Alexandria, Va., has published ballot guides on various state ballot issues. But this year’s guide won’t include issues on the Florida ballot. According to the state of Florida, all donors to the general fund of a national organization would have to be disclosed if it engages in election-related speech. Since a few of NTU’s donors have asked to remain anonymous, this year’s ballot guide will have to skip a discussion of the issues on the Florida ballot.
All the Broward Coalition and other grassroots groups like them want is to do is express their opinions on candidates and issues. That’s a core First Amendment right that shouldn’t be tied up with red tape and regulation.
Political Speech Regulations Hit the First Amendment at Its Very Core
The whole point of the First Amendment, and its protections for free speech and association, is to allow open and vigorous discussion and debate about important issues, especially political issues. 2 The First Amendment “was fashioned to assure unfettered interchange of ideas” and expresses “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open.” 3 That tradition fully includes the types of paid communications at issue in Florida: “[H]anding out leaflets in the advocacy of a politically controversial viewpoint [ ] is the essence of First Amendment expression…. No form of speech is entitled to greater constitutional protection.” 4
There is something wrong when, in a nation that supposedly cherishes free speech and self-government, a state saddles groups and individuals with regulations, red tape and the threat of fines or even jail for simply discussing important political candidates and issues. In America, no one should have to get the government’s permission before speaking about politics.
The Race Down the Slippery Slope
Campaign finance laws were intended to root out political corruption—the quid-pro-quo trading of political favors for campaign contributions. They were supposed to affect organized committees—political parties and political action committees—that were actively campaigning for politicians, while leaving all other speech free. In the seminal campaign finance case, Buckley v. Valeo, the U.S. Supreme Court attempted to limit the scope of campaign finance laws by holding that regulation only applied to those engaged in “express advocacy” and working with or otherwise connected to political candidates. 5 Express advocacy includes words and phrases such as “vote for,” “elect,” “support,” “cast your ballot for,” “Smith for Congress,” “vote against,” “defeat” or “reject.”
But over time, politicians and others who advocate for more regulation have sought to shut down more and more political speech. With the 2002 Bipartisan Campaign Reform Act, known popularly as McCain-Feingold, Congress expanded federal laws to speech that merely mentioned a politician within 30 days of a primary or 60 days before a general election. And at the state level, campaign finance laws have expanded to capture advocacy regarding ballot issues, for which there is no candidate to corrupt and therefore no constitutional reason to regulate citizen speech.
Florida’s law now takes this one step further. An “electioneering communication” is sweepingly defined as any paid expression in any communications media by means other than the spoken word in direct conversation that “refers to or depicts a clearly identified candidate for office or contains a clear reference indicating that an issue is to be voted on at an election, without expressly advocating the election or defeat of a candidate or the passage or defeat of an issue.” 6 Communications media includes the normal media outlets, as well as anything printed by a printer, direct mailed or even distributed on the Internet. 7
Sweeping into the reach of campaign finance laws even speech that does not expressly advocate for or against a candidate or issue leaves practically no room for citizen speech about politics. For example, according to the Florida Department of State, only the first sentence of the following paragraph could be uttered by a citizen group without the group becoming subject to the electioneering communications law:
Floridians will vote on two school-choice ballot issues this fall. One of these is Ballot Issue #7, entitled “Religious Freedom.” This ballot issue provides that an individual or entity may not be barred from participating in any public program because of religion. The approval of this ballot issue by voters will be beneficial to Florida’s families because, by amending Florida’s Blaine Amendment, the issue removes a legal barrier to the creation of scholarship programs that allow parents, not bureaucrats, to pick the school that is best for their children. 8
The second sentence clearly references a pending ballot issue and is therefore an electioneering communication. The last two sentences provide more information and an opinion about the ballot issue—but without expressly advocating for or against it. This too is banned unless a group registers with the government.
It is no exaggeration to say that Florida’s electioneering communications law is the broadest regulation of political speech in the country. It broadly catches every form of political speech that falls short of express advocacy, from a sample copy of the ballot to basic educational materials to expressions of opinion about what an issue or candidate could mean for Floridians in the future. 9 Indeed, going beyond express advocacy and regulating mere references to candidates or pending ballot issues is precisely the point of these laws.
A small group of states has started to restrict electioneering communications, but no state has gone as far as Florida. 10 For groups, Florida’s law applies if they spend as little as one dollar. As soon as the organization has information that causes it to anticipate that it will mention a ballot issue or candidate, it must register. 11 After registering, the full panoply of Florida’s campaign finance laws applies. 12
Individuals are captured by these intrusive laws as well. A person who spends $100 of her own money also has to register and comply with additional regulations affecting speech. 13
Nonprofits, Community Organizations and Think Tanks Are Unwittingly Snared by Political Speech Regulations
This isn’t a limited restriction of speech. If Florida’s electioneering communications law is allowed to stand, the limited infringement on free speech rights intended by the original campaign finance laws will have heartily swallowed the First Amendment. Community groups, nonprofits, clubs and even advocacy groups are the way that people regularly express themselves. These groups add valuable voices to the public debate. And they must be free to address the important issues facing the state.
Statewide ballot issues for the November 2008 election include various tax proposals, including a proposal to exempt permanently conserved land from taxes and a proposal dealing with waterfront renewal, a marriage amendment, and an amendment removing the Legislature’s right to prohibit the ownership of real property by aliens ineligible for citizenship. Local ballot issues across the state add even more issues to debate.
Numerous nonprofits, community organizations and think tanks will likely mention any number of these issues in the lead-up to an election. These groups provide valuable information to the public and help in the general voter education process.
But laws like Florida’s chill their speech and make politics an insiders’ game. Political pros can hire an army of lawyers and accountants, but ordinary citizens and small groups don’t have the experience or the resources to navigate the complex web of regulations. In fact, most grassroots groups in Florida and elsewhere probably don’t even know they are breaking Florida law with their speech, yet they face large fines and even jail, 14 just for mentioning a candidate or issue on the ballot.
Registration, Disclosure and Additional Requirements Burden and Chill Political Speech
And when they do know about the laws, groups are far more likely to silence their speech or limit their speech to members only, which lessens the impact of their speech and harms us all. Why? Because each additional restriction increases the cost of speech. As the costs continue to rise, more and more speakers opt to remain silent rather than submit to being under the government’s thumb.
Even when a group’s focus is non-political—for example, a charity or homeowners’ association—it must comply with Florida’s campaign finance laws if it makes but a single statement about a clearly identified ballot issue (or, for that matter, a candidate). 15 As part of that compliance, it must register with the Division of Elections as an electioneering communications organization (ECO), name a treasurer, and make regular reports of contributions and expenditures. Moreover, such groups would have to report all of their donors because it is impossible to “pigeonhole” which contributions and expenditures were made for the purpose of making electioneering communications and which were not. 16 This means that every donor’s full name, address and amount contributed will be disclosed on a public website, so that anyone can access it. For contributions over $100, disclosure must also include the occupation (for individuals) or principal type of business (for corporations). 17
The only way to avoid these regulations is for the group to create a separate organization so that it can simply mention or talk about the ballot issue. Of course, creating an entirely new organization would take lots of time and money too. Obviously, if being an ECO or creating a separate group is the price an organization must pay to speak, many groups will just refrain from talking about ballot issues.
The law has yet more requirements that also restrict or chill speech. It prohibits contributions to an ECO from 501(c)(4) or 527 groups unless those groups are separately registered as electioneering communication organizations. 18 It compels speech by requiring every electioneering communication to contain a “paid for by” disclosure, even if the publisher would prefer to remain anonymous. 19 Even worse, it states that funds received in the five days before an election may not be expended during that time or be used to pay for obligations arising before the election—thus cutting off speech at the very moment when it is most effective. 20
The Penalties Mount
Any error in complying with these laws can be devastating. Potential violations are investigated by the Florida Elections Commission (a separate and independent entity from the Division of Elections) whose nine panel members are appointed by the governor. 21 According to the Commission, there are almost 100 separate violations possible under the campaign finance code. 22 They range from not including all of the required information in a report to filing a late report to accepting a cash contribution over $50. 23 All violations are subject to civil penalties, and many are subject to additional criminal penalties and a jail time. 24
A few examples put this in perspective. The law establishes $50/day fines for late reports ($500 per day for the report immediately preceding an election); a fine up to $1,000 for various errors, including failing to include the required disclaimer; and a fine up to $50,000 for knowingly and willfully accepting two or more contributions from unregistered 527s or 501(c)(4)s. 25 Once registered, groups are subject to random audits. 26 Anyone can file a sworn complaint alleging a violation of the campaign finance laws, so groups that have a particularly controversial position must be especially wary. 27
Legal Claims: Why Florida’s “Electioneering Communications” Law is Unconstitutional
In recent decisions, the U.S. Supreme Court has suggested that it may have finally had enough of efforts to silence political speech. In FEC v. Wisconsin Right to Life, the Court reiterated that political speech regulations are subject to the highest judicial scrutiny: To be constitutional, the restriction must be narrowly tailored to further a compelling government interest. 28 The Court then went on to note that it “has never recognized a compelling interest in regulating ads … that are neither express advocacy nor its functional equivalent.” And that it certainly did not intend to start now. 29 Doing so, said the Court, would build an extra level of political speech regulation on top of an increasingly broken foundation of laws that stifle free speech. 30 The same reasoning applies to Florida’s electioneering communications law that, by definition, regulates speech that is less than express advocacy.
If anything, Florida’s restrictions on the mere mention of ballot issues are even more blatantly unconstitutional than the restrictions on the mention of a candidate in both Florida’s law and the federal law reined in by the Court in Wisconsin Right to Life. The Court has said that states cannot limit the expenditures and contributions of those who support or oppose ballot initiatives and cannot prohibit corporations from contributing to ballot initiative campaigns. 31 This is because with ballot issues, there is no candidate who could become “corrupted” by campaign contributions, and preventing such corruption is the only constitutional justification for limiting speech in the name of campaign finance laws.
Anonymous speech and association is also a bulwark of the First Amendment, long recognized by the U.S. Supreme Court. That is a far cry from Florida’s political speech restrictions that require disclosures on every paid “electioneering communication” indicating who paid for the leaflet or advertisement. In 1995 in McIntyre v. Ohio Elections Commission, the Court struck down an Ohio law prohibiting anonymous pamphleteering, arguing that forced disclosure changed the message of the speaker. 32
Disclosures of individual contributors to groups who happen to mention a candidate or ballot issue in their speech are no better. In NAACP v. Alabama, the Court recognized that forced disclosures prevent people from engaging in political action—in that case, from supporting important civil rights issues. 33 Today, individuals may choose not to join groups because of privacy concerns with having to disclose their name, address and occupation on the Secretary of State’s public website or because they fear harassment. In fact, one recent organization made headlines when it used federal campaign finance disclosures to send letters to potential donors, warning them about making contributions. 34
Finally, Florida’s restriction on using funds donated in the last few days before an election directly conflicts with the principle underlying the U.S. Supreme Court’s decision in Mills v. Alabama. 35 In that case, the Court struck down a state law that forbade advocacy on the day of the election. The state used the law to punish a newspaper editor for publishing an election-day editorial advocating that people vote a certain way on a ballot issue. In finding that the statute violated the First Amendment by setting up a time period in which no speech was allowed, the Court was particularly concerned that the law prevented responses to last-minute arguments made right before election day.
Similarly, with Florida’s law the restriction on raising and spending funds in the closing days of an election—the point at which a large number of voters start paying attention to the issues for the first time—effectively limits the ability of groups to speak out during the most important period for speech.
The Broward Coalition is an all-volunteer, not-for-profit 501(c)(4) corporation that has been serving the Broward County, Fla., community for more than 25 years. A coalition of condominium associations, homeowners associations, co-ops, community organizations and individuals, the Broward Coalition is non-partisan and does not endorse candidates for political office. It meets monthly for lunch, hosts political forums with the League of Women Voters and distributes a monthly newsletter. The Broward Coalition—both in its newsletter and on its website, www.browardcoalition.org—wants to inform voters about the various political issues on the upcoming November ballot. But that speech is prohibited by Florida’s campaign finance laws without complying with the state’s burdensome electioneering communications law. Charlotte Greenbarg serves as the Coalition’s president.
The University of Florida College Libertarians is a student-run campus group that seeks to spread the ideals of liberty and self-ownership. Founded in the 1980s in an effort to counter the Democratic and Republican biases on campus and to introduce a more principled view of politics, the group aims to work with other libertarian groups throughout the county, the state and the nation to bring a comprehensive pro-freedom message to the University of Florida campus. The semester before the November 2008 election, the UF College Libertarians brought speakers to campus, sponsored civil rights demonstrations, and authored editorials in the campus newspaper. The group would like to get the word out about pro-liberty local and state candidates by handing out flyers and information to their fellow UF students but can only do so if it first registers as an electioneering communications organization. The UF College Libertarians would also like to speak about upcoming ballot issues but cannot without first registering their speech with the state. Neal Conner serves as the club’s president.
The National Taxpayers Union and the National Taxpayers Union Foundation are nonpartisan organizations founded in the 1970s to promote lower taxes and smaller government at all levels. NTU is a 501(c)(4) nonprofit that advocates for comprehensive tax reform, a Balanced Budget Amendment, a Tax Limitation Amendment, and to keep congressional spending in check. NTU’s guiding principle has always been, “This is your money and the government should return it to you.” NTUF is a 501(c)(3) nonprofit that provides timely and original information on public policy issues, including tax reform, economic growth, Congressional budget tracking, interest group analysis and entitlement reform. NTUF is also well-known on the international scene as an advisor to numerous citizen groups and think tanks across the globe. Based in Alexandria, Va., NTU/NTUF has a staff of about two dozen. NTU publishes an analysis of state ballot issues each election cycle. While it prepared comments for Florida, the final version will not be able to include ballot issues in Florida because of the state’s electioneering communications law. NTU often receives anonymous donations, and having to comply with Florida’s law means that it would be unable to accept those donations. Duane Parde serves as NTU/NTUF’s president.
The Institute for Justice’s legal team in Broward Coalition v. Browning is led by Senior Attorney Bert Gall. Gall litigates free speech, school choice and property rights cases nationwide. Gall is currently co-counsel on behalf of SpeechNow.org, a group challenging the federal campaign finance laws regarding independent groups. Gall is joined by William H. Mellor, president and general counsel of the Institute for Justice, and Staff Attorney Valerie Bayham, who has worked on several campaign finance cases, including a challenge to Colorado’s campaign finance laws on behalf of a group of citizens in Parker North, Colo., who were sued for putting up yard signs that protested the potential annexation of their neighborhood.
Darren A. Schwartz, a partner with Rumberger, Kirk & Caldwell, P.A., will ably serve as local counsel.
The Institute for Justice
The Institute for Justice litigates in support of fundamental individual liberties, including free speech. IJ’s headquarters and state chapters have challenged or are challenging restrictions on political speech across the nation, including:
· SpeechNow.org v. FEC, 36 in which IJ is challenging political committee requirements that restrict individuals from donating more than $5,000 to citizen groups that want to independently speak out regarding candidates.
· San Juan County v. No New Gas Tax, 37 in which the Institute for Justice secured a unanimous opinion from the Washington Supreme Court halting efforts by the government to treat on-air radio commentary about an initiative campaign as “in-kind” contributions subject to regulation under state campaign finance laws.
· Sampson v. Coffman, 38 in which IJ is challenging Colorado’s campaign finance laws in federal court on behalf of six neighbors in Parker North, Colo., sued by their political opponents for speaking out against the annexation of their neighborhood to a nearby town.
· Independence Institute v. Coffman, 39 in which IJ represents a Colorado non-profit think tank taken to court for speaking out against two tax-raising referenda.
· Martin v. Brewer, 40 in which IJ is challenging Arizona’s so-called “Clean Elections Act,” which punishes candidates who reject the political welfare of public funding by burying them in red tape, giving extra money to their publicly funded opponents and setting stricter limits on how much they may raise.
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