Another Chilling Step in Campaign Finance Disclosure

About Steve Klein

serves as Staff Attorney and Research Counsel for the Wyoming Liberty Group.

It’s unseasonably cold today in Cheyenne and across Wyoming.  The weather reports say it’s 80 degrees and partly cloudy in Washington, DC, but this morning a chilling breeze blew across Capitol Hill.  The Senate Judiciary Committee hosted a hearing on “Current Issues in Campaign Finance Law Enforcement,” basically giving Senator Whitehouse the chance to lament that people are engaging in politics, and that politics is a dirty business.  Borrowing from the prosecution of Tom DeLay in Texas, Sen. Whitehouse considers it “money laundering” to carefully comply with FEC and IRS regulations that prevent disclosure of speakers’ names.  Naturally, we can probably expect another push for more campaign finance laws like the DISCLOSE Act in the coming months.

Meanwhile, the downsides of campaign finance disclosure and the lengths to which government will use such laws to suppress speech are becoming more apparent.  In just the past two weeks, bureaucrats in Washington state have moved to expand disclosure laws to consider constitutional legal representation a “contribution” to a group.  Our friends at the Institute for Justice have represented the Washington group Recall Dale Washam and other political organizations for years, but only now has the Public Disclosure Commission decided those hours of work are contributions and is taking further action against RDW for failure to report, in the middle of its lawsuit against the PDC.

IJ filed a motion for an emergency injunction, which the Ninth Circuit denied last week. 

This is perhaps the most chilling move yet on the part of the “it’s just disclosure” crowd.  As IJ rightfully notes in its briefing, nonprofits (including Wyoming Liberty Group) cannot make political contributions and maintain nonprofit status under the law, meaning this expansive definition prevents nonprofits from representing political groups in constitutional challenges.  So, not only will grassroots groups be subject to piles of forms in the name of “disclosure,” they won’t even be able to acquire free legal assistance to challenge them without adding even more information to said forms.

And what of IJ’s “contributions”?  While “reformers” and reform-minded scholars continue to insist that money is not speech, few disagree that individuals and groups usually donate to candidates and causes that they actually support.  At the same time, most understand that legal representation often comes from attorneys standing for principles that are far bigger than candidates and causes.  This is especially true in constitutional cases, most obviously free speech. Let us never forget Evelyn Beatrice Hall’s summary of Voltaire’s philosophy: “I disapprove of what you say, but I will defend to the death your right to say it.”  Alas, the Washington PDC’s maneuver is so brazen it’s like they never knew it in the first place.

Indeed, if this new bit of “mere disclosure” takes root, the American Civil Liberties Union will be shocked to learn of their “contributions” to former Republican Senator James Buckley and, far more uncharacteristically, the National Socialist Party of America. Members of the NAACP will finally have all the dirt they need on other members who make “contributions” to the Ku Klux Klan.  Reformers will still insist that money is not speech, but reality will once again win out, with law equating representation of controversial speech with affirmation of its content.

Like other state and federal agencies, Washington has passed burdensome disclosure regulations, but the pesky legal challenges keep coming, opening up big speech “loopholes” that lead to more hearings in our nation’s capitol on the political speech problem.  Washington’s Public Disclosure Commission has taken a big step for the campaign finance reformers by moving to shut attorneys up as effectively as they have grassroots groups. 

I expect IJ and RDW will eventually be vindicated, but that any agency would engage in this kind of villainy in the first place is yet further proof that those charged with “cleaning up” politics make it far dirtier and oppressive than it would be without campaign finance laws.

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