Locking Up Political Speech

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:

• Non-political groups will likely be swept up by these laws.  While less than one percent of the groups have an explicitly political mission, 30 percent at least occasionally communicate with the public about policy issues.  These groups could inadvertently find themselves subject to regulation if the issues they care about become part of an election campaign.
• Most nonprofits will face a heavy regulatory burden under these laws if they speak about politics.  The nonprofit groups in the sample are quite small, with few donations to support their work (a median of just $35,000 annually) and few employees (a median between three and four people).  Most groups do not have any staff member, or have just one part-time person, tracking the kinds of contributions and expenditures these laws demand to be reported.  Complying with electioneering communications laws would impose potentially large costs on these groups, diverting them from their core missions.
• These laws will force most organizations to compromise donor privacy if they speak about politics, thereby risking financial support.  Nearly 70 percent of the nonprofits strongly resist revealing the kind of individual-level donor information required by electioneering communications laws.  More than 36 percent of the groups expect to take a fundraising hit if required to reveal detailed donor information about all contributors.

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.