Americans were once free to speak about politics without asking permission from the government or being forced to document their political activities for the authorities. But under the guise of “campaign finance reform,” government regulation of political speech has metastasized, spreading far beyond the mere financing of campaigns to monitor and control everyday political speech by ordinary citizens.
The latest wave of such regulation is state and federal laws targeting so-called “electioneering communications.” The term is most closely associated with the federal Bipartisan Campaign Reform Act of 2002, known popularly as McCain-Feingold, and describes broadcast ads that merely mention a federal candidate and that air shortly before an election. For the first time in American history, federal law brought such speech and the groups that engage in it under the regulatory control of the government.
Soon after the U.S. Supreme Court upheld that law, states began to follow suit—but with even more sweeping regulations of political speech. Fifteen states now have “electioneering communications” laws, and more are considering them. Most of those laws impose more onerous requirements and cover more political speech than the federal law.
The unprecedented reach of electioneering communications laws leaves little room for unregulated political activity and puts even clearly non-political civic associations under the control of campaign finance bureaucrats. The mere mention by a civic group of a candidate or ballot issue on its website, let alone an opinion, can trigger regulation.
To find out how these laws—and the extensive disclosure and reporting requirements they impose—would impact nonprofits in the real world, this project surveyed more than 1,000 civic groups in Florida, home to the broadest electioneering communications law in the nation. The responses from more than 230 groups indicate:
These results demonstrate that electioneering communications laws impose expensive and intrusive regulations on civic groups if they simply exercise their First Amendment right to speak about politics. In effect, electioneering communications laws “lock up” ordinary political speech as off-limits to groups without the resources to comply with the regulations.
Legislators would do well to consider repealing these laws and avoid similar expansions of the regulation of political speech, and courts should take seriously the anti-democratic impacts of electioneering communications regulations and the real-world burdens they impose on First Amendment rights.