Red Tape

Constitutional rights do not often disappear overnight. They yield gradually to mounting regulation backed by calculated efforts from those who favor more government and less freedom.

So-called campaign finance “reform” is a classic example. For the past 30 years, the speech police have piled regulation upon regulation at the federal, state and local levels, restricting nearly all speech that might influence how citizens vote. Today, outside the press, the government determines who may speak, when they may do so, what they may say, and how much they spend to say it.

Campaign Finance Red Tape: Strangling Free Speech & Political Debate, a new Institute for Justice strategic research report by economist and campaign-finance expert Jeffrey Milyo, shows the consequences of eroding our First Amendment rights.

Milyo asked 255 people to fill out the actual paperwork required for a grassroots group to speak about ballot issues in Colorado, California or Missouri. All 24 states that permit ballot issue elections impose similar requirements.

Milyo asked participants to register a hypothetical citizens’ group as a “political committee” and report its contributions and expenditures. The group was modeled after IJ’s clients in Parker North, Colo., who were sued for failing to register as a political committee when they used yard signs, flyers and meetings to oppose the annexation of their neighborhood.

The result? Failing grades across the board. No one completed the forms correctly, and the average score was just 41 percent. People were frustrated, calling the process “Worse than the IRS!” and commenting, “Seriously, a person needs a lawyer to do this correctly.”

In the real world, all 255 participants could be subject to fines and, like those in Parker North, politically motivated litigation for their mistakes. Nearly 90 percent agreed that this red tape and the specter of penalties would deter citizens from political activity.

In an earlier report, Disclosure Costs: Unintended Consequences of Campaign Finance Reform, IJ’s Director of Strategic Research Dick Carpenter polled citizens and found out that few pay any attention to the information all this red tape is designed to produce.

Two other IJ cases make clear how ballot issue disclosure laws thwart everyday speech. In Colorado, we represent a policy group, the Independence Institute, sued for speaking out against two tax-raising referenda. In Washington, even after the state supreme court ruled that talk-radio commentary is exempt from regulation, our battle continues to fully vindicate the First Amendment rights of a ballot issue campaign wrongfully prosecuted for failing to report speech over the airwaves as an “in-kind” contribution.

Together, IJ’s strategic research and litigation show that any benefits of ballot issue disclosure laws are tiny, while the costs are huge. They also refocus the campaign-finance debate where it belongs: on the effects of speech regulations on ordinary citizens.

In short, we are fighting the erosion of our rights through campaign finance “reform” with a campaign of our own: pioneering research and cutting-edge litigation designed to restore real protections for the political freedoms enshrined by the First Amendment.

Lisa Knepper is IJ’s director of communications.