Campaign Finance Laws Increasingly Used to Silence Speech and Thwart Representative Democracy

John Kramer
John Kramer · October 26, 2005

Seattle—In America, a nation built on a rich history of free political speech, governments are now censoring political discussions in the guise of campaign finance reform. The dangers of government censoring political speech to stifle their opposition are unfolding right now in Washington state and elsewhere across the nation.

Washington State Litigation

The Institute for Justice was in court this week to defend the rights of Washingtonians to speak out on important political issues and participate in the legislative process. The case, San Juan County v. No New Gas Tax, is an effort to prosecute (formerly No New Gas Tax)—the organization seeking to roll back a massive gasoline tax increase of 9.5 cents per gallon over four years—for failing to report favorable comments by popular radio talk show hosts as “in-kind” contributions. On Monday, the Institute appeared in trial court to defend against a motion to dismiss its counterclaims, which seek to declare that the prosecution violates the rights of free speech, freedom of association and due process of law.

Supporters of campaign finance laws claim that they seek only to counter the influence of money on politics and simply require disclosure, but don’t affect anyone’s right to speak. In practice, however, campaign finance laws are being used by the government to silence or intimidate speakers that the government doesn’t like. Moreover, the next step in campaign finance “reform” will be for government to use these laws to try to influence media reporting of the news and eliminate alternative voices that do not tow the government’s line. This is precisely what happened in Washington State, where municipalities that will benefit from the new gas tax, in an effort to intimidate vocal radio proponents of an initiative to repeal it, brought their action in conjunction with the initiative’s political opponents. Moreover, in court on Monday (October 24, 2005), the lawyer for the municipalities suggested that discussions on talk radio shows should be treated as a contribution because “talk radio is different” in that hosts also “endorse products and do it live on their programs,” thus apparently removing any protections available to other media personalities. In their pleadings, these municipalities argued that regulation is necessary because, by speaking about an issue of public importance to every Washingtonian, these talk radio hosts provide “constant exposure on the radio [that] is more than simply reporting the news and constitutes advertising for the [campaign],”—as if “reporting the news” is the only form of expression protected by the First Amendment.

“This case represents the next step in the agenda of those who wish to sanitize political discourse in America—using the campaign finance laws to intimidate alternative media,” said Bill Maurer, executive director of the Institute for Justice Washington Chapter (IJ-WA), which is representing for free. “From the renewed calls to reinstate the Fairness Doctrine to the egregious political bullying occurring here in Washington State, the government realizes that if there is free and open political discourse, their ability to simply do what they wish is hampered. The message of this case is clear: the people’s job is to pay their taxes, and we don’t want to hear any complaints about it. The government prefers that political discourse in the media be antiseptic, regulated and reflect only the opinion of the establishment. The alternative media—talk radio, blogs and alternative newspapers—represent a challenge to the establishment’s monopoly on information and the government is taking steps to stop these journalistic voices.”

National Implications

Washington State is not the only place that the conflict between campaign finance laws and free speech is playing out, as the government seeks to restrict the people’s access to alternative sources of information. Cases raising similar issues are pending in Colorado, Washington, D.C., and even the U.S. Supreme Court.

In Denver, the Independence Institute, a non-profit think tank, brought a constitutional challenge to state campaign finance laws after a complaint was filed against it claiming the organization violated the laws by vigorously opposing two tax initiatives that will appear on the November 2005 ballot. The Independence Institute has long supported lower taxes and fiscal responsibility, among a number of public policy issues, through publications, regular media commentary, sponsorship of scholars, and activism in support of legislative and political issues. The complaint claims that the Institute must register as an “issue committee” under state law (similar to a “political action committee” or “PAC”) and that it must disclose the identities of its entire membership and all of their contributions to the non-profit.

In Washington, D.C., the Federal Elections Commission recently filed a complaint in federal district court against the Club for Growth, an organization devoted to pro-growth fiscal policies, lower taxes and various free-market reforms. The complaint alleges that the Club is really a “political action committee” under federal law because it often speaks out in favor of politicians with pro-growth agendas. However, the Club uses a variety of means to promote its pro-growth ideals, including publishing hundreds of articles and sending its scholars on hundreds of speaking engagements each year. Registration as a PAC would subject the Club for Growth to stringent reporting and disclosure requirements.

This term, the U.S. Supreme Court will hear Wisconsin Right to Life v. Federal Elections Commission, a case that raises the issue of whether grassroots activist organizations are subject to the blackout periods for issue ads that mention a candidate’s name within 30 days of a primary or 60 days of a general election. Wisconsin Right to Life (WRTL) ran radio ads during the summer of 2004 calling on Wisconsin citizens to contact U.S. Senators Russ Feingold and Herb Kohl to urge them to oppose the filibusters of federal judicial nominees. The ads had nothing to do with an election. They did not mention any political party, they did not call for the election or defeat of either senator, and they did not even mention President Bush. But because Senator Feingold was up for election that term, the ads became regulated “electioneering communications” within 30 days of his primary and were subject to federal laws prohibiting corporations (WRTL is a non-profit corporation) from financing broadcast ads that mention a candidate within the blackout periods. In 2003, the U.S. Supreme Court upheld these laws primarily because the Court found that large private corporations often used “sham issue ads” to circumvent expenditure and contributions limits and regulations. This case will determine whether the same restrictions apply when groups seek not to influence elections, but to focus public awareness on government action.

Steve Simpson, a senior attorney with the Institute for Justice, said, “Collectively, these cases raise the question of whether American citizens will continue to enjoy the unfettered right to speak out on matters of public importance, access alternative means of information, and participate in the political process, or whether the exercise of those rights will be hobbled by a complex web of regulations that rival the tax code.”

Simpson concluded, “If the growth of campaign finance regulations continues, people will come to view political activism with the same enthusiasm they bring to filing their tax returns. Well intended or not, if these laws are not successfully challenged, political speech and participation in this country will whither.”