Former Wyoming House Speaker Exposes the Fallacy of Campaign Finance Disclosure

by Steve Klein

I do not know whether Tom Lubnau, former speaker of the Wyoming House, intended to undermine all the reasons so-called reformers offer up in support of applying campaign finance disclosure to citizen advocacy in his recent piece for the Cowboy State Daily, but he deserves some credit either way. Speech can be judged on its merits and requiring disclaimers and filings with the government just to engage in the political process does not make politics any cleaner.

Lubnau does readers no favors with his opening:

Recently, Secretary of State Chuck Gray unilaterally determined that anonymous mailers sent out more than 30 days ahead of a primary and 60 days ahead of a general election are legal.

As a result, we can all expect a spring full of anonymous mailers from anonymous mailboxes from all over the country spouting all kinds of horrible nonsense about potential candidates and political officeholders.

Lubnau is an attorney and should know better. (Part of me suspects he does know better.) Under Wyoming law, speech like that in the "anonymous mailer"— described as "a 'report card' of [Representative Barry] Crago's performance from the 2023 legislative session based on 10 subjects"—is not subject to campaign finance law unless it explicitly calls for the election or defeat of a candidate. Wyo. Stat. § 22-25-101(d)(iii). Subtler speech, known as an "electioneering communication", is only subject disclosure if it "can only be reasonably interpreted as an appeal to vote for or against the candidate or ballot proposition" and, even then, only if it "[i]s made within thirty (30) calendar days of a primary election, sixty (60) calendar days of a general election or twenty-one (21) calendar days of any special election during which the candidate or ballot proposition will appear on the ballot[.]" Wyo. Stat. § 22-25-101(d)(i). Expanding disclosure laws beyond these confines would violate the First Amendment, according to about half a century of Supreme Court decisions. So, it was hardly a "unilateral" determination on Secretary Gray's part, and Lubnau's suggestion otherwise is, to borrow his words, "horrible nonsense."

Lubnau then calls it ironic that Gray would be the subject of an anonymous mailer that critiques his performance as Secretary of State. The irony, though, lies more with Lubnau. He proceeds to assess the content of the mailer about Gray statement-by-statement and, under his analysis, determines its criticisms were accurate. But in doing so, Lubnau discards one of key complaints of campaign finance reformers: that a reader needs to know who is speaking in order to judge the content of the speech.

To supporters of all-encompassing campaign finance disclosure, identity is everything. Somehow, a statement on an anonymous mailer that Secretary Gray's "Millionaire daddy spent $500,000 to buy the election" in 2022 would be more or less true or at least more assessable if it also read, for example, "Paid for by Tom Lubnau" at the bottom of it. As Lubnau shows, it does not matter, because the speech that is actually in the mailer can be debated on its merits no matter where it comes from. A similar shibboleth I've heard from would-be reformers is that one cannot respond at all to anonymous speech unless one knows who's behind it. This, too, is balderdash, not only by Lubnau's example but in elections past: in the 2018 primary, Governor Gordon responded to numerous claims made in so-called "dark money" advertisements and even won the election.

Lubnau seems to suggest that Gray's response to the mailers supports disclosure, or that the law should require the mailer to disclose its source to assess the credibility of Gray's claim that it was "'Clinton/Soros donors funding this mailer[.]'" This is a bit humorous, but it shows the most dangerous part of meddling in citizens' speech by requiring disclaimers: that it's nothing more than the government providing a way to distract or deflect from what one is trying to say. Whether from George Soros or a Wyomingite with an axe to grind, a disclaimer would do nothing to the mailer except let the debate shift to sideshow about the merits of the speaker rather than the speech.

Long ago, Alexander Hamilton, a New Yorker, wrote most of the Federalist Papers along with James Madison, a Virginian. Each paper was signed "Publius" and together the essays played an outsized role in the ratification of the United States Constitution. The Publius name helped prevent Virginians from dismissing speech from New York, and vice versa. To be sure, today's anonymous mailers in Wyoming and beyond are usually not as compelling as The Federalist, but the reasons for speaking anonymously are just as compelling. As Lubnau shows, there really isn't any harm from anonymous speech, because its merits can be judged on its own. So, it is to Secretary Gray's credit that he, according to Lubnau, "approved the use of anonymous mailers as a political tool."

Steve Klein is an attorney with Barr & Klein PLLC in Washington, DC and a lobbyist for the Wyoming Liberty Group. He was co-counsel to Wyoming Gun Owners in a recent federal lawsuit that ruled portions of Wyoming campaign finance law are unconstitutionally vague.