Silencing The Media & Public Debate Through Campaign Finance Laws

John Kramer
John Kramer · April 25, 2006

Arlington, Va.—If radio talk show hosts can be harassed through new campaign finance laws, there is nothing stopping the political establishment from investigating the contacts, activities and editorial decisions of editorial page editors, columnists and television commentators, warned the Institute for Justice today.

IJ, one of the nation’s leading defenders of First Amendment freedoms, is defending two organizations, one in Washington state and the other in Colorado, against abusive prosecutions under those states’ campaign finance laws. The laws were used by the government and its allies to try to stifle political debate designed to limit the size and scope of government. If the laws stand, First Amendment protection of opinion journalists nationwide would be severely damaged.

“Increasingly, campaign finance laws are being used by America’s political establishment and their allies to squelch the speech of political dissenters—most often, those opposed to greater government taxing and spending powers,” said Institute for Justice President and General Counsel Chip Mellor. “America is supposed to enjoy free speech and a free press. And campaign finance reform laws are sold as a means to clean up elections and promote greater political discourse. But these laws are being used to stifle speech, purposefully confuse the political process, and impose great opportunity costs on those who dare go up against the powers that be. They are a national disgrace and they should be struck down by the courts.”

“This is the kind of inevitable complication and abuse that occurs when the government tries to regulate speech,” said Bill Maurer, executive director of the Institute for Justice Washington Chapter, which is defending No New Gas Tax. “Plain and simple, the campaign finance laws were used to try to intimidate the radio talk show hosts and to distract the anti-tax campaign. The government here subpoenaed the internal records of the radio station, investigated contacts between the media and campaign representatives, and made clear that the threat of regulation would disappear only if the hosts self-censored their discussions to fit the government’s preferred view of the issue.”

In Washington—in a case to be argued before the state Supreme Court on June 8, 2006—a county and several cities sued, a group promoting an initiative to repeal a hefty increase in the state’s gasoline tax. The government and a private prosecutor claim that didn’t report “in-kind contributions” it supposedly received in the form of on-air commentary by two radio talk show hosts who repeatedly discussed why the tax should be repealed. In a decision that turned freedom of the press on its head, a state trial court held that the radio talk show hosts’ comments were reportable contributions to the campaign.

Maurer continued, “If talk show media outlets can be subpoenaed and harassed today, it will happen tomorrow to editorial page editors and writers, op-ed editors and television commentators. Some politically interested prosecutor can make a subjective determination that a member of the media has crossed the line from commentary to political advertising. The press is supposed to be free in America to set its own editorial policies and control the content of its message, even when the media is advocating that citizens take political action the government doesn’t like.”

In Colorado, the State’s vague campaign finance laws were used to go after the Independence Institute, a non-profit think tank that opposed two referendums that would raise taxes and increase government spending. In a complaint filed with the Colorado Secretary of State, an advocate for the tax increase claimed the Independence Institute was an “issue committee” that was “campaigning” against the referendums and had violated campaign finance laws by failing to register with the State, report all expenditures and contributions, and disclose the identities of its supporters.

“Those who claim campaign finance laws will not erode political speech and participation or that they regulate only ‘money’ but not speech either do not understand the operations of these laws, or, worse, do not care,” said Steve Simpson, an Institute for Justice senior attorney who heads up the Colorado case. “The Independence Institute’s case illustrates this point: if the reason to regulate campaign finance is to prevent the corruption of politicians, then regulating ballot initiative campaigns is pointless because ballot initiative elections are about voting for issues, not politicians; if there is no politician involved, then there is no one to be ‘corrupted’ by the temptation to trade political favors for campaign contributions. The only purpose these regulations serve is to limit the ability of citizens to speak out about ballot issues and to restrict the public’s participation in issue campaigns.”

“It is telling that you see these lawsuits being filed by those calling for greater taxation and government largess,” Mellor said. “This is true whether a state has a Republican power structure, like Colorado, or a Democratic power structure, like Washington.”