Mrs. Holland’s (and Mrs. McIntyre’s) Complaint

February 3, 2016
posted by Bob Bauer

When Margaret McIntyre’s case came before the Supreme Court in 1995, she had passed away.  Her executor was determined to prevail over the state of Ohio, which had concluded that she was properly held liable, on complaint by school officials, for distributing anonymous handbills opposing a proposed school tax levy.  The Court heard the case and held for the late Mrs. McIntyre.  In a somewhat unfocused opinion, Justice Stevens found that Ohio’s campaign finance disclosure requirements could not be applied to a case like hers: he noted in part that Mrs. McIntyre spent only a modest sum, out of her own pocket, and only for personal, independent speech. McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995).  The opinion in part relies on the long and distinguished history of anonymous pamphleteering in the United States.

So now comes along Mrs. Tammy Holland, in a remarkably similar case. In this instance, once again in conflict with a school board, Ms. Holland placed ads in a local paper calling for close examination of the qualifications of candidates standing for election or reelection to the school board.  Her interest stems from her strong opposition to Common Core, which she has expressed in part by withdrawing her son from the school system.  A school official, on his own behalf and that of the entire board, filed the complaint, alleging that her advertisements triggered campaign finance regulatory requirements she did not satisfy. The complaint alleged that she had to register as a political committee and that her ads should have carried disclaimers.

Under Colorado’s campaign finance laws, the case was referred to an administrative law judge and in defending herself, Mrs. Holland wound up spending $3500 on lawyers. She was successful and sought to recover those fees.  Another school official, also a candidate for reelection, threatened her with another complaint if she did not give up her claim for the money.  She didn’t and was sued again, and the regulatory wheels turned once more.

Now Ms. Holland, courtesy of the Institute for Justice, has filed a complaint, challenging the private enforcement system under the Colorado law.  Any person can file a complaint in Colorado, alleging violations of that law, and Ms. Holland claims that there are no protections against the harassment that she believes she is experiencing at the hands of these officials.  Under the law, a complaint moves quickly to an administrative law judge, and to the initiation of a discovery process, all of which operates, she claims, to punish her for the exercise of her constitutional rights and to make her think twice about doing it again.

Margaret McIntyre asked for protection of her speech, based on its content; Mrs. Holland (while not conceding the application of Colorado law to her ads) is asking for protection of her speech from the private campaign finance enforcement process.  One wonders in hindsight whether the McIntyre Court was not at least partly influenced in the petitioner’s favor out of similar concerns about abuse of the enforcement process.

These two cases, taken together, reinforce current themes in contemporary critiques of campaign finance.  The first is the importance of separating out the big from the “little” guy or gal. Mrs. Holland, like Mrs. McIntyre, funded inexpensive communications distributed on the local level on issue of local concern.  That the campaign finance laws can ensnare citizens engaged in this kind of activity is not helpful to an already beleaguered enforcement system.  The loss of credibility it suffers affects the regulators’ capacity to function effectively on the “big” issues.

The Holland case also raises an important question about private enforcement schemes.  The federal campaign finance laws include one, not quite like Colorado’s, but the risks are comparable.  Anyone can file a complaint with few meaningful screens on reliability (though in fairness, federal claims without any basis whatsoever in law may well be bounced).  Those who will do best within the system, achieving the most impact, will have the most resources, including the capacity to drag the FEC into court if unsuccessful in winning their point at the administrative level.  One effect is to swell the Commission’s workload.  Another is to add more noise to the clamor about rampant violations of a campaign finance laws in the face of which the FEC is seen to be helpless.

There are reforms that should be reasonably within reach on a bipartisan basis.  The ordinary, “little” citizen can be given greater protection; campaign finance law can limit private complaints to violations of meaningful levels of seriousness or spending.  There are other ways that the small stuff can be brought to the regulator’s attention, and the possible resolutions need not include formal findings or fines, or protracted proceedings that include appeals to the courts.

It is true that the campaign finance laws are judged in part on how they address major issues.  But it is also true that the measure of their efficacy, and maybe even their prospects, depend on how they treat the minor ones and protect against political abuse of their enforcement procedures.

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