Inexpensive Issues Speech and the Regulation of Impact

January 5, 2015
posted by Bob Bauer

The Wall Street Journal has little use for campaign finance rules, and it cannot surprise anyone with its complaint about state laws compelling political disclosure. But its reflexive suspicion of motives behind these laws, and ready, scornful dismissal of any need for them, does not mean that it is always wrong. A recent editorial questioning a state disclosure law, and praising a court for overturning it, is a case in point. The WSJ has this one right. The problem it identifies has cropped up around the country, and it is not helpful to the cause of reform to have the objective of disclosure defined by enactments like this.

The case, decided in Arizona, involved a pittance spent for communications about a ballot measure. Galassini v. Town of Fountain Hills, et al., No. 2:11-cv-02076, 2014 WL 6883063 (D. Ariz. 2014). The spender was an individual—a concerned citizen, she would say—who sent emails to 23 individuals to recruit them for a rally and was charged with failing to register in advance and report as a “political committee.” These requirements are triggered by spending of more than $250. Notified of the state’s legal position, the citizen-activist then cancelled the rally in order to minimize her exposure . And she sued. A district court invalidated the law, finding that the term “political committee” was too vague to be constitutional.

In another case, in Colorado, the question was whether an individual’s interest in keeping church and state separate led her to “issue committee” status, bringing with it a registration and reporting requirement that applies when two or more persons spend more than $200 on issues speech. Coalition for Secular Government v. Scott Gessler, No. 1:12-cv-01708, Doc. 49 (D. Colo. Oct. 10, 2014). The annual financial support she received from others for this project ranged from $200 to $3,500, and her primary interest was the distribution of a policy paper. The court hearing this challenge could not see how this activity, or the $200 spending threshold, somehow implicated the state’s interest in mandating disclose of “large campaign contributions” and in checking the “disproportionate level of influence” great wealth can buy. Id. at 11. It found that, as applied to the particular case, there was no such interest and the law failed. Id. at 11-12.

In neither of these cases was the spending intended to promote a candidate’s election or defeat, or the electoral fortunes of a political party. In both cases, the money spent was small, and in both, the statute at issue requires registration prior to any expenditure. The chances that a citizen would miss the requirement are high, and there are also good reasons why she would not suspect that there was any such legal responsibility in the first place. As the Colorado litigant expressed it, she would never have imagined “in a million years” that to speak to a ballot issue, she would have to register with the state. Id. at 4, n. 2

The defenses states have put up for these enactments have been unimpressive. Here is one of Arizona’s explanations for sweeping up small-scale spending into its mandatory disclosure net:

 Plaintiff herself provides a data point in favor of the $250 zero-reporting threshold, as she was able to defeat the Fountain Hills bond by sending out a few emails and asking for no more than her acquaintances to come stand outside with signs.

Galassini, 2013 WL 5445483, at *21 (D. Ariz. Sept. 30, 2013) (internal quotations and citation omitted). The theory here seems to be this: a handful of emails and signs held aloft by friends, neighbors or volunteers recruited to the cause must be judged for regulatory purposes by their effect. In the State’s view, the potential for successful advocacy counts decisively in favor of the disclosure requirement. So much for “big money,” replaced by “big impact.”

Disclosure policy becomes more complicated when the “issues” speech is prompted by the campaign season or includes mention of candidates. The Supreme Court muddied these waters when, rejecting restrictions on the financing of issue advocacy, or “electioneering communications,” during campaign periods, it left room for disclosure requirements. How much protection does issue advocacy lose when it involves campaign issues? The Court dealt with the question somewhat summarily and its jurisprudence on the hard issues it will have to confront is unsettled.

But it is not especially difficult to guess the Court’s response to cases like those in Arizona and Colorado, where the speech is undeniably issues speech unconnected to campaigns and candidates, and the sums spent are modest. We have had a preview of that response in the lower courts and it has not been favorable to the view that inexpensive speech on issues can be regulated because it may be persuasive.

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