As my colleague Paul Sherman notes, we won an important victory for free speech last week when the Tenth U.S. Circuit Court of Appeals ruled in Sampson v. Buescher that Colorado’s disclosure laws for grassroots groups that speak out about ballot issues violated the First Amendment.
The case started when our clients, six neighbors who opposed the annexation of their neighborhood into the nearby town of Parker, Colo., were sued by the chief proponent of annexation for failing to register as an issue committee and disclose all of their activities to the state. Colorado allows not only the Secretary of State but also private citizens to enforce the campaign finance laws, so anyone can file an action against someone they claim has violated the laws and drag them into court. The rationale is that the Secretary of State might not enforce the laws against political allies, so the drafters of the law thought the solution was to give enforcement authority directly to “the people.”
Unfortunately, “the people” can be just as mendacious as anyone else. Consider the reaction to the Tenth Circuit’s decision of one of the people who sued our clients under the campaign finance laws:
“We did that action because those (annexation opponents) refused to debate us,” said David Hopkins, an annexation proponent who filed the original election complaint in 2006. “The purpose of the law is to get the debate on what the issues are and not just have a group putting out propaganda without accountability.”
The campaign finance laws are said to serve a number of purposes: They prevent “corruption”; they elevate the debate by requiring speakers to stand by their messages; they prevent the “distorting effects” of large expenditures of money; they equalize voices; they promote democracy.
But when you strip away all the good government platitudes, the motivation behind campaign finance laws often amounts to little more than the anger and frustration expressed in a comment such as Mr. Hopkins’s: They refused to debate us, so we sued them.
Consider the congressional debates over McCain-Feingold. Despite all the anti-corruption rhetoric that led to its passage, the members who supported it were far more concerned about the alleged evils of last-minute attack ads. Here’s a representative quote from Senator McCain himself:
If you cut off the soft money, you’re going to see a lot less [attack advertising]. Prohibit unions and corporations [from spending money on independent ads] and you will see a lot less of that. If you demand full disclosure for those that pay for those ads, you’re going to see a lot less of that . . . .
And all we heard during the run-up to the recent election was that groups were spending “obscene” amounts of money and “buying elections” with all of their advertising, as though voters are too stupid to make up their own minds.
If the SpeechNow.org case had not made clear that groups are entitled not only to spend unlimited funds for independent advocacy but to raise unlimited funds for that purpose as well, is there any question that so-called reform groups would have filed a slew of FEC complaints against anyone who dared to make independent expenditures without becoming a PAC or complying with contribution limits? Indeed, that happened after the 2004 elections, when independent groups like the Swift Boat Vets and Moveon.org spent huge sums on electoral advocacy.
The fundamental purpose of campaign finance laws has been nowhere better expressed than by Yale law professor Owen Fiss in his book The Irony of Free Speech. As Fiss put it, the government may “have to silence the voices of some in order to hear the voices of . . . others. Sometimes there is simply no other way.”
It shouldn’t surprise anyone that when we open up free speech to regulation, those who enforce the laws will impose their own ideas of what is “fair” on the process. Indeed, if “fairness” is the purpose, why isn’t suing someone because they won’t debate you entirely appropriate?
There are many, many things wrong with campaign finance laws. We can now add to the list that they turn campaigns into a sort of Hobbesian war of all against all, as political opponents decide to play out their campaigns in courts of law, rather than in the court of public opinion.
The Framers gave us the First Amendment in part to prevent all this. Perhaps it’s time to take it seriously.