Congress Shall Make No Law...
10:10 PM
Yes, “Reformers,” There is Such a Thing as a Slippery Slope Toward Censorship


Proponents of campaign finance laws are generally quick to denigrate or dismiss as alarmist arguments that the regulation of political speech regarding elections will lead the country down a slippery slope in which the government will eventually seek to control all—or at least the vast majority of—political speech.


As ESPN’s Lee Corso might respond to these denials of the existence of such a slippery slope, “Not so fast, my friend!”


Florida resident Charlotte Greenbarg would probably say the same thing. Charlotte is the president of the Broward Coalition of Condominiums, Homeowners Associations, and Community Organizations. The Coalition is an all-volunteer organization that is dedicated to keeping its members informed about issues that affect both them and the community at large. In the 2008 election, Floridians were asked to vote on several proposed constitutional amendments, a few of which (including one creating a property tax exemption for conserved land) were of interest to the Coalition’s members. Thus, Charlotte wanted to devote a page in the Coalition’s monthly newsletter that simply listed all of the proposed amendments and (without advocating whether or not to vote for them) highlight ones that she thought her members should pay attention to.


Then Charlotte discovered Florida’s so-called “electioneering communications” law. Under it, merely mentioning a ballot issue meant that the Coalition would have to become a heavily regulated “electioneering communications organization.” This meant that, among other things, the Coalition would have to register with the state before speaking, file regular reports about its spending, supply the government information about all of its members (even if they didn’t intend their dues to go toward political speech), be subject to funding restrictions and random audits, and—if they failed to comply with all these burdensome regulations—face the prospect of fines and possibly even jail time for Charlotte.


Understandably, Charlotte decided that, under these conditions, mentioning any ballot issues in the newsletter was just way too dangerous. And, because the law also covered any mention of candidates, she had to remove all references to candidates’ names from her newsletter and the Coalition’s website. Even advertising a forum at which candidates came to speak to the Coalition about their positions was off limits because Charlotte couldn’t mention their names in the newsletter, on the Internet or even on flyers.


For these reasons, Charlotte joined with the Institute for Justice to sue the state of Florida in federal court and have the law struck down. Thankfully, the court enjoined the enforcement of the law, allowing Charlotte to discuss (.pdf) the ballot issues in the Coalition newsletter before the election.


The court recognized that, by regulating groups that simply mentioned the name of a candidate or ballot issue, Florida was attempting to regulate virtually all political speech in the state. This, the court said, was unacceptable under the First Amendment: “While it is true that the legislature has the power to regulate elections, it does not have the power to regulate purely political discussions about elections.”


Well said.


But campaign finance “reformers” can be counted on to continue to press for more and more regulation of “purely political discussions.”


For example, under so-called “grassroots lobbying” laws, individuals who spend as little as $500 to talk with their neighbors and ask them to contact their legislators must register with the government and comply with burdensome “disclosure” requirements. And, apparently waking up to the fact that people now talk on Facebook, through Twitter and on blogs, reformers are discussing not whether but how those forums should be regulated. Finally, lest we forget, the government recently suggested to the U.S. Supreme Court that it could stop corporations from funding the publication of books. (Thankfully, the Court disagreed.)


We shouldn’t be surprised by any of this. As we explained in our amicus brief (.pdf) in Citizens United, with each incremental advance in campaign finance regulation, so-called “reformers” have assured us that adequate alternative channels of communication and political participation remained free. But then these alternative channels become “loopholes” that reformers later tell us need to either be closed or heavily regulated.


So the next time you hear a “reformer” decry slippery-slope arguments about the growing encroachment of campaign finance laws on free speech, ask her to swear an oath that she’ll never argue that your Facebook page, tweets, blog or text messages should be regulated under those laws. The hemming and hawing you hear will offer all the confirmation you’ll ever need that reformers don’t just know that a slippery slope toward the regulation of virtually all political speech exists—they’re counting on it.  


Image source: Larry He’s So Fine