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Campaign Finance Laws Shut Up the Grassroots

by Steve Klein, Benjamin Barr

Here in the high plains and even higher mountains of Wyoming reside a variety of people, many of whom are growing wearier and wearier of the Obama Administration’s policies.  Whether sharing in nationwide debates over insurance mandates for contraceptives or discussing the particular threat of new labor regulations that would restrict children in ranching and farming families from learning the family business, many Wyoming residents feel like they’re a lot farther than 1,500 miles from the Beltway.  Despite this disconnect, federal issues remain important to Wyomingites, and recently three retirees decided to band together in a group called Free Speech and speak out.

What’s stopping them is hundreds of pages of Federal Election Commission (FEC) regulations, and the risk of thousands of dollars in fines or even criminal prosecution if those regulations are not followed.

Although the Supreme Court succinctly stated in the Citizens United decision that the “First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek declaratory rulings before discussing the most salient political issues of our day,” there remain plenty of regulations and practices that require all of these.  Free Speech spent two months working with the FEC in its advisory opinion procedure just to determine whether it would have to register and report as a political action committee (PAC) in order to speak.  The group would like to run advertisements that criticize President Obama’s positions on land rights, gun control, health care, and the like, but if an ad is too critical of the President, the FEC might consider it “express advocacy” for his election or defeat.  If too many of Free Speech’s ads are deemed express advocacy, then Free Speech will be considered a PAC and must register with the FEC, then regularly report its spending and the advertisements it runs.  These requirements are hard enough for corporations, “Super PACs” or other big groups to comply with, and it would likely cost Free Speech more than its entire advertising budget (which is around $2,000) just to comply.

The FEC’s regulations—particularly whether an advertisement is express advocacy or not— are so vague that even the commissioners could not agree whether or not they apply to Free Speech.  Their advisory opinion—following three drafts, two meetings, and two separate statements by a split Commission—does not answer whether or not Free Speech can speak without PAC status.  So, after two months of being silenced, even the government’s top campaign finance officials can’t give Free Speech a straight answer, and Free Speech remains muzzled.

A lawsuit filed on June 14, 2012 by Free Speech here in Cheyenne, aptly titled Free Speech v. Federal Election Commission, challenges these vague regulations as unconstitutional under the First Amendment.  Groups of citizens should not have to register with the government just to speak about politics: they should enjoy the same robust freedom of speech guaranteed to the press, protesters or even pornographers.  Lawmakers and regulators who are concerned with corrupt political practices must pass campaign finance regulations that are specific, easy to follow and avoid ensnaring grassroots groups like Free Speech.  In doing so, they should be mindful that free speech is a necessity to healthy democracy, not a problem to be solved.

The majority of politicians and media focus discussions of federal campaign finance law on ominous terms like “Super PAC” and “secret money,” claiming that well-financed ad campaigns “drown out” the voices of others.  Yet these so-called reformers seldom offer solutions to this influence other than platitudes such as overturning the Citizens United decision or adding even more pages to the campaign finance regulations.  Nothing illustrates the irony of this better than the case of Free Speech, because campaign finance laws do more than big money ever could to shut people up and confine participation in politics to the wealthy and connected.  It’s time to overturn vague and overbroad laws, and let Free Speech live up to its name.

Benjamin Barr and Stephen Klein serve as counsel to the Wyoming Liberty Group, a nonprofit free market policy organization in Cheyenne.  They are representing Free Speech in its suit against the FEC with Cheyenne attorney Jack Speight as co-counsel.

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Thursday, 19 October 2017
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