Wyoming Elections Committee Tees Up More Censorship by Red Tape

by Stephen Klein 

On May 30th and 31st, the Joint Corporations, Elections and Political Subdivisions Committee of the Wyoming Legislature held its first interim meeting between legislative sessions in Lander. The meeting opened with an extensive presentation from various officials about how elections work in Wyoming, from registration to poll books to voting machines. Notably, far fewer citizens offered public comment than at the committee's final interim meeting last year; it was also far less contentious. This is, at least in part, due to Chuck Gray's positions as Secretary of State. He took the lead at the meeting in supporting certain popular bills such as requiring 30 days of residency before one may register to vote in Wyoming. The bill is sure to meet with some continued opposition but, if it in fact becomes law, will likely pass constitutional muster if challenged in court.

Campaign finance law, on the other hand, promises but more constitutional problems for (and probably from) the committee. Though it was a small part of the meeting, those portions raised serious free speech concerns and signaled that the committee and various other officials are still woefully ignorant of (or even resistant to) the First Amendment.

In the mainstream media, on social media, in legislative engagement, and in everyday discussions, conversations about campaign finance law are usually as constructive as a prairie fire. Lines like "money isn't speech," "Citizens United must be overturned," and "it would be great if we could just get the money out of politics" are all statements that poll well and form the basis for a lot of bad laws. But the opposing viewpoint—that money is an integral part of speech—has the benefit of being true and is a First Amendment doctrine that can defeat bad campaign finance policies in court. Nobody makes a yard sign or takes out an ad in any effective medium without paying something for it, and these are not problems to be solved but freedoms to be celebrated. Over the years I've served as co-counsel in three successful lawsuits against Wyoming campaign finance laws, with another one pending appeal.

Although it's tempting to just let the Legislature add more fish to this proverbial barrel, it's too easy to surrender or ignore the public debate. And the issues raised at the meeting provide insight into how campaign finance works to censor political speech.

The first problem arose regarding a new Wyoming law that requires federal—as opposed to just state—political committees (often called political action committees or "PACs") to file reports with the Wyoming Secretary of State if they buy election ads in state races. This law was supported by the committee last year after a group of citizens in Campbell County produced fliers and mailers supporting numerous candidates. Because their slate included Harriet Hageman for Congress, the group registered as a federal PAC with the Federal Election Commission and filed reports that are available at FEC.gov. Wyoming legislators found this offensive and considered it a circumvention of state law. The new law apparently requires federal PACs to also file reports with the Wyoming Secretary of State that will be available at wycampaignfinance.gov if they pay for speech supporting or opposing state candidates.

There's bittersweet humor here. Websites are websites; it is usually no less transparent for a PAC to file at one website or the other. Frankly, few citizens use either website and it is of no benefit to the public to increase the filings that populate these low-traffic sites. Moreover, the Wyoming site is far less user-friendly than the FEC's, which was revamped a few years ago. (On that note, I am usually unable to even open the Wyoming site in the standard Macintosh browser, Safari.) Legislators claimed there was circumvention of state law because of different filing deadlines (allowing a federal PAC to disclose later than a Wyoming PAC) but they did not address this in the new law: they only added more forms to fill out for political speech.

What took the cake here was the testimony of Secretary Gray's staff that, while the law goes into effect this summer, the Wyoming website isn't ready for these filings. They are working on updating the site in time for election season next year. I respect that the Secretary of State's office is apparently taking implementation more seriously that past administrations, but the law should not have gone into effect until these changes were made. Even if flawlessly implemented, creating two different filing regimes for the same organization is probably ripe for litigation, and will only get worse in practice.

The supposed scariness of "big money" or "dark money" seldom stacks up to reality in Wyoming. Big, nefarious influence is the white whale that all would-be reformers claim they're chasing, but they uniformly end up complaining about or punishing small-money grassroots activity. Whether it's a group of citizens in Rock Springs taking out a small newspaper ad, or the aforementioned group in Gillette promoting a slate of candidates, or established politicos sending a mailer that under no circumstances would trigger campaign finance violations, the money is minimal and inversely proportional to the outrage of the powers that be. Too many of these "reformers" are established interests who just don't want citizens speaking out in the first place or want to suppress it with red tape. Even if they don't mean to do it, censorship-by-red-tape is the only result.

At the May meeting some Fremont County citizens were added to the list of supposed scofflaws. Julie Freese, Fremont County Clerk, testified that a small group of citizens took out an ad in the local paper, presumably around the 2022 election. After being confronted by Ms. Freese, the leader of the group—who had no idea of the workings of campaign finance law, much less of its existence in the first place—endeavored to register as a state PAC. This person was unable to do so because Wyoming's website (and, for that matter, Wyoming law, Wyo. Stat. § 22-25-101(b)) requires a PAC to have both a chairman and a treasurer, and this informal group did not have both. Ms. Freese took the opportunity to paint this not as free speech or good politics, and not as a problem with Wyoming law, but as another problem of circumvention. She added in some gripes with Fremont County's prosecutor, who apparently wouldn't make the effort to force the informal group to register locally (kudos to said prosecutor). This was another example of nothing close to big money, but it is allegedly a harbinger of undisclosed big money to come.

Senator Cale Case, Senate chairman of the committee, says he doesn't "want our campaign reporting to be onerous." This is dubious following the passage of last year's reporting law and holding up another grassroots association as a problem to be solved—that is, people to be punished.

While the committee will apparently once again sponsor Rep. Ken Chestek and Wyoming Promise's tired resolution to overturn Citizens United, the committee's efforts at censorship-by-red tape are an ongoing, immediate threat to free speech that, in the best light, promise full employment for constitutional litigators in Wyoming. It would be better to just respect free speech in the first place.

The committee will meet again next week, August 24 and 25, in Douglas and once more in October before the 2024 Budget Session.