Politics & Policy

If You Wanna Speak, You Better Have a Lawyer

Campaign-finance reform vs. the First Amendment.

When Karen Sampson and six of her neighbors decided to oppose a local ballot initiative, they learned an important lesson about modern American politics: To speak out, you need more than an opinion. Today, you also need a lawyer

Karen and her neighbors discovered this last year after speaking out against the annexation of their tiny neighborhood to the nearby town of Parker, Colo. They sent out flyers, talked to neighbors, and printed “No Annexation” lawn signs. For this classic exercise in American participatory democracy, they found themselves sued for violating Colorado’s campaign-finance laws.

A new survey released today by the Institute for Justice shows what Karen and her neighbors now know all too well: Campaign-finance laws increasingly threaten the free speech and privacy of ordinary people without providing any appreciable benefits.

Colorado’s campaign-finance laws require any group that spends at least $200 to “support or oppose” a ballot initiative to register with the government as an “issue committee” and file reports disclosing their expenditures and contributions, including the name, address, and often even the employer of people who financially support their efforts.

In short, Karen and her neighbors were sued for expressing an opinion without first filing the proper paperwork.

All 24 states that permit citizen initiatives have similar regulations. The driving force behind such laws is the idea of “disclosure” — that groups who favor or oppose a ballot issue should be required to reveal information about their donors and activities to the government and the public. To proponents, the idea seems a harmless way to ensure an informed electorate.

Not surprisingly, most people agree. The Institute for Justice polled more than 2,000 citizens in six states with ballot issue elections, and found that people overwhelmingly agree with the idea of disclosure.

But when people are faced with the reality of disclosure, their support turns to opposition. Fifty-six percent of those polled oppose having to reveal their name, address and contribution amount, and fully 71 percent oppose being forced to reveal their employer’s name. Moreover, most respondents say they would likely “think twice” before making a contribution if it means revealing personal information to the government.

In other words, citizens themselves admit disclosure laws have a chilling effect on their free-speech rights, making them less likely to exercise those rights by contributing to a cause they believe in.

This isn’t surprising. Ballot initiatives often involve controversial issues such as gay marriage, assisted suicide, abortion, medical marijuana, and school vouchers to name just a few. Thus, many respondents expressed such concerns as “I do not think it is anybody’s business what I donate;” “I don’t want other people to know how I’m voting;” “it’s an opening for harassment;” and “I might get fired.” People obviously care about privacy, which is, after all, why we have secret ballots.

Moreover, the claimed benefits of disclosure — creating a “more informed” electorate — are illusory. Three quarters of those polled did not seek out any “disclosed” information at all about contributors to the issues on which they were voting, nearly two thirds did not even know where to find that information, and solid majorities were not aware of any contributors who either supported or opposed the ballot issues they cared about.

Disclosure laws may sound good in theory, but they come at a high cost to free speech and privacy. Karen Sampson and her neighbors learned this the hard way. If we take those rights seriously, as the Framers of the First Amendment surely did, it is high time we reexamined whether campaign finance laws are worth the burdens they impose.

Steve Simpson is a senior attorney at the Institute for Justice, which represents Karen Sampson and her neighbors and published “Disclosure Costs: Unintended Consequences of Campaign Finance Reform,” available at www.ij.org.


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