Campaign Finance Laws vs. Free Speech
By Steve Simpson
Should governments be able to regulate political speech and association?
The question almost seems absurd for an American. Our First Amendment states that “Congress shall make no law . . . abridging the freedom of speech . . . or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The Framers certainly believed that the First Amendment protected political speech and participation in addition to other forms of speech. Reflecting the same value for these rights, each state has its own separate constitutional protection for speech and association.
Despite these protections, the federal government and most states have passed campaign finance laws that blatantly violate these rights. Sold as efforts to control the influence of “money” in politics, the laws in fact regulate what money buys—political speech—and what it represents for many citizens—a meaningful opportunity to participate in the political process.
Federal and state laws regulate campaign contributions and expenditures for political candidates, and many states even extend these regulations to ballot initiative elections. In 2002, Congress actually banned broadcast advertisements mentioning a candidate for federal office within 30 days of a primary and 60 days of an election that are paid for with corporate funds. The Supreme Court upheld the ban in 2003, concluding that it was necessary to prevent the appearance of corruption. Since then, 13 states have passed similar laws.
In short, in America, it is now constitutional for the government to control and even ban political speech and participation. To borrow from Justice Thomas in his now-famous dissent in the Kelo case: Something has gone horribly awry with the Court’s—and the country’s—approach to the First Amendment.
Just as the Institute for Justice stepped into the breach to protect property rights from the steady encroachment of government intrusion into our lives, we are championing First Amendment rights against the growth of campaign finance laws. Our recent efforts include:
• A challenge to Arizona’s Clean Elections Act, which created a public financing scheme for elections paid for by a tax on lobbyists;
• A challenge to efforts by the political establishment in Washington State to intimidate two talk radio hosts by requiring an initiative campaign they support to report as “in-kind contributions” the hosts’ on-air comments about the campaign;
• A challenge to Colorado’s ballot initiative regulations that would require the Independence Institute, Colorado’s premier free market policy organization, to register with the State and report all of its expenditures and contributions simply because it tried to educate the public about a referendum it (correctly) believed would lead to higher taxes and more government spending;
• Filing amicus briefs in U.S. Supreme Court campaign finance cases, including two cases before the Court this term.
Campaign finance laws are perhaps the most significant attack on First Amendment freedoms in a generation. They chill political speech and participation and are often used as political weapons. Unless checked now, they will inevitably expand as each new effort to regulate “money” in politics fails to dampen the basic human desire to influence politics, leading to new “loopholes” and calls for more regulations to close them.
IJ will continue to oppose these laws and to expose them for what they are: naked efforts to control political speech and participation.
Steve Simpson is an IJ senior attorney.