I meant to post this op-ed some weeks ago, but it got lost in the shuffle. Better late than never!
“Campaign finance laws stifle speech” by Steve Simpson
Published on June 27th in The Colorado Springs Gazette
The Colorado Supreme Court recently turned down an opportunity to vindicate the First Amendment right to speak about politics without government getting in the way. That is bad news for Coloradans, but the case, a challenge to the campaign finance laws brought by the Independence Institute, places Colorado on the forefront of a growing battle over speech about campaigns.
Colorado, like the other 23 states that allow citizen initiatives, requires groups that wish to speak out for or against ballot issues to register with the state and to report contributions and expenditures – that is, to report detailed personal information about supporters and chronicle the group’s political activities.
The nonprofit Independence Institute learned about these laws the hard way when it criticized Referenda C and D in 2005 and was promptly sued by a member of the campaign supporting the referenda who claimed the group had violated the campaign finance laws.
After spending thousands in legal fees defending itself, the institute brought its own suit challenging the laws under the First Amendment, but lost in both the trial court and the court of appeals. With the Colorado Supreme Court’s refusal to hear the case, the last option for the institute is an appeal to the U.S. Supreme Court.
The question in this case cuts to the heart of political freedom in this nation: Can states require citizens who wish to band together to speak out about political issues to register with the government and disclose the identities of those who support them?
Supporters of these laws claim that groups might influence the outcome of an election, and that is certainly true – indeed, that is usually the reason to speak out during an election.
But allowing individuals to influence the course of their government is one of the main reasons we have a First Amendment. Americans have relied on the right to organize and to speak – often anonymously – from the founding generation, though the debates over ratification of the Constitution on up to today.
If the “free” in free speech means anything at all, it means that individuals who organize and speak have the right to determine their message and what information they disclose about themselves. Listeners can always demand more information or disregard what they hear entirely. But requiring individuals to disclose their contributions for or against ballot issues is no different from requiring them to disclose their votes.
The Independence Institute’s case is not an anomaly. The same thing happened to a group of neighbors in Parker North, Colo., when they opposed the annexation of their neighborhood in 2006. They placed “No Annexation” signs on their lawns and were promptly sued by the proponents of annexation for failing to comply with campaign finance laws. A federal court found that “[b]y permitting this intimidation, Colorado’s campaign finance laws had the effect of stifling political speech in violation of the First Amendment,” but still refused to strike down the laws. That case is currently on appeal.
In California, during the debate over last year’s marriage amendment, both sides used information obtained from campaign finance laws to harass and intimidate their opponents. A case challenging the laws is currently pending in federal court.
Federal courts in Wisconsin and Florida have recently struck down similar laws under the First Amendment. As the court in Florida wrote, “While it is true that the legislature has the power to regulate elections, it does not have the power to regulate purely political discussions about elections.”
Despite the clear language of the First Amendment, the reality in America today is that to speak out about politics, you need more than an opinion – you also need a lawyer. Fortunately, courts are beginning to take notice of this sad fact, and we may soon see the day when free speech is once again a right, not a privilege.
Simpson is a senior attorney at the Institute for Justice, which represents the Independence Institute and the Parker North neighbors.