Congress Shall Make No Law...

    Congratulations to our friends at the Center for Competitive Politics, who yesterday won a victory for free speech in Patriotic Veterans, Inc. v. Indiana. The case concerned an Indiana law that prohibited pre-recorded political phone calls unless the recorded message was introduced by a live operator. The effect of the law was to favor well-funded, well-established interests that could afford live operators over newer groups that could not.


    The court did not reach the First Amendment issue, instead holding that the state law was “preempted” by the Federal Telephone Consumer Protection Act. But as CCP Chairman Brad Smith notes, “the end result is the same: [yesterday’s] ruling advances the First Amendment and provides for more competitive elections in the state.”


    The full text of the opinion is available here.

    wisconsinMake No Law readers may remember the Institute for Justice’s victory in Sampson v. Buescher, where the Tenth Circuit Court of Appeals ruled that grassroots groups have the right to speak about ballot issues without registering with the government and disclosing their activity.  Now the positive effects of that ruling are being felt in other states.  Last Wednesday, in the case of  Hatchett v. Barland, No. 2:10-cv-00265 (E.D. Wis. Sept. 14, 2011), a federal trial court in Wisconsin followed the Sampson ruling to conclude that it violates the First Amendment to force a citizen to tell the government that he sent a few political postcards to his neighbors.


    “Mailing post cards?” you ask.  “That doesn’t sound like those ‘fat cats’ we keep hearing about.”  Indeed, this case is just the latest example of how the burdens of disclosure laws fall hardest on ordinary citizens who don’t have lawyers to alert them to the pitfalls of campaign finance laws.


    Here’s what happened.  In 2006, only a few days before a Spring election, Charles Hatchett discovered that a referendum concerning liquor sales was on the ballot in his town.  Afraid the referendum would pass because of lack of publicity he sent out 524 postcards advocating that people vote against it.  It worked—the referendum was defeated.


    Unfortunately for Mr. Hatchett, he did not know that under Wisconsin campaign finance law he should have placed a disclaimer on the postcards and reported his spending if it was over $25.  His total came to about $300.


    Once the postcards became public, police officers questioned him and his son about whether he had sent them out.  Imagine that—police interrogating an American citizen because he had had the audacity to exercise his freedom of speech.


    Thankfully, Mr. Hatchett fought back and won.  The Wisconsin court, citing Sampson v. Buescher, ruled that applying a disclosure law to ordinary citizen speech such as Mr. Hatchett’s violates the First Amendment.  This should not be a surprise: No American should have to register with the government for the “privilege” of sending postcards to his neighbors.  What’s surprising is that the law ever existed in the first place.

    In a story that demonstrates almost everything that is wrong with the breadth and complexity of campaign finance laws in this country, the Washington Public Disclosure Commission has weighed in on an issue that threatens our very democracy to its core: whether the purchase of used campaign signs for $10 each in a race for the Edmonds, WA, city council was a campaign contribution or not. While reformers constantly talk about “plutocrats,” “big-money special interests,” and “sugar daddies,” in reality the burden of campaign finance laws fall heavily on new comers, small campaigns and grassroots organizations, who do not have the lawyers, accountants, and funding necessary to comply with the government’s increasingly incomprehensible but exacting regulations on political speech. Byzantium at its most decrepit could not have conceived of a law as petty and intrusive as this.


    The end result, of course, is that these laws drive amateurs and regular citizens from politics and leave the playing field to professionals and large, well-funded interests. In other words, politics becomes the sole preserve of the very “plutocrats” campaign finance reformers claim to abhor. Nonetheless, we can expect reformers to continue to assail “big money” interests while they promote laws that drive “small money” actors from politics altogether.