Institute for Justice releases ‘electioneering communications’ study

June 30, 2009   •  By Laura Renz
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Too often, campaign finance regulations are regarded as incomprehensible and inapplicable to most people’s daily lives. However, the Institute for Justice recently completed a study concerning the actual effects of “electioneering communications” restrictions on non-profit organizations and grassroots groups, and the results are troublesome to people everywhere who value First Amendment political rights.

By conducting a survey of registered non-profit organizations in Florida — which held the dubious distinction of having the broadest electioneering communications prohibition in the country (a federal district court recently struck down the law as unconstitutional) — the study aims to measure the actual impact of these laws on the day-to-day operations of small organizations.

The results are noteworthy — the reporting and disclosure requirements in these laws would, according to the non-profit survey participants, negatively affect their ability to fundraise (and, by extension, operate), communicate with members about relevant issues and more generally take valuable time away from the core missions of the groups.

The report thoroughly explains the results and is well worth the read, not to mention timely given the Supreme Court’s recent non-decision in the Citizens United case.  In fact, the study underscores the broader implications and harm these restrictive and sweeping laws inflict on core political speech.

Beyond that, however, there are several other key points that are worth emphasizing.

First, this research wisely focuses on small non-profit and grassroots groups. Too often individuals and groups who are active in politics are portrayed as exclusively big money donors and well connected PACs. This report, however, mentions several groups that would fall under these types of regulations that one would not expect – for example, a libertarian college club in Florida with an operating budget of under $100 a year, or an all volunteer group of homeowners in a community that publishes a monthly newsletter. These are not who the so-called reform community typically mentions when advocating aggressive campaign finance regulation (i.e., First Amendment limitations), but they are exactly who is affected

Secondly, there is a fundamental flaw in the logic that the more relevant an issue is to a campaign, the more government should restrict citizen’s ability to speak on it. A government that both funds political speech — as they do with publicly funded campaigns in several states and proponents hope to do with congressional elections with the Fair Elections Now Act — and also decides what issues can be discussed and by whom poses a grave threat to our democratic process. Instead of this idea of government-managed political speech, it’s imperative that citizens can associate with each other and communicate in myriad ways with the larger community about issues that most affect them, which oftentimes are issues politicians like to avoid addressing. In theory, campaigns are supposed to be a time for citizens to decide who best represents their interests in government, and not simply a regulated amount of time in which politicians offer their constituents carefully constructed sound bites.

These arguments aren’t simply theoretical. As the report notes, many states have both extremely high monetary penalties for violating electioneering communications laws, in addition to criminal penalties. Campaign finance laws are often looked upon as so obscure and complicated that most citizens wouldn’t think that they would need to consult an attorney before printing handouts at Kinko’s for a local ballot issue, for example. But in many states, they do, and failure to comply could land them in jail. There needs to be stronger language than a “chilling effect,” to describe the danger that poses to citizen engagement.

This report addresses an often overlooked but exceedingly relevant aspect of campaign finance law, noting that “states that have passed these laws have made no effort to demonstrate the existence of any compelling state interest in regulating and discouraging political electioneering communications that fall short of express advocacy.” 

To date, lawmakers in fifteen states have felt no need to explain to their constituents why their ability to address relevant political issues needs government interference and criminal penalties. That state legislators no longer even feel compelled to exaggerate reasons as to why these laws need to exist should alarm any concerned about robust and free political debate.

Laura Renz