TODAY, voters in six states – including New Jersey- will decide 38 ballot measures covering such hotbutton issues as school vouchers and stem-cell research. Issues like that invite public comment, but
chances are that people in those states have unwittingly violated state campaign-finance laws just by speaking
out about them.
Under the First Amendment, every citizen should have an unfettered right to participate in public debate. But
try to get involved in political life, and you will soon see how far we have come from the time of anonymous pamphleteers holding forth on the great issues of the day. Apparently, it takes a lot of bureaucracy and red tape to oversee free speech, even when it involves relatively straightforward debate for or against a clearly defined ballot measure.
Today, citizen groups as small as two people with as little as a few hundred dollars must register with the government as a “political committee” in order to speak about a ballot issue. State campaign-finance laws also require detailed disclosure of almost every transaction by such committees; most states then post the names, addresses and employers of most committee contributors on the Internet.
These laws cover more than monetary transactions. Yard signs, flyers and other “non-monetary” support for a ballot issue can subject ordinary citizens to state disclosure laws. Dare to engage in similar political activity with neighbors or other like-minded citizens, and you will probably become a “political committee” under the law. Either way, detailed reports on your activities are likely required. Fail to file them and you could face large fines or even be sued by political opponents.
Worse still, state campaign-finance disclosure rules are so complex and confusing that even professional political groups sometimes have trouble making heads or tails of them. Pity the hapless ordinary citizens who feel moved to speak out on a public issue. What are the chances they would even know about such rules, let alone be able to comprehend the legalese and comply with unfamiliar bureaucratic regulations?
I investigated that by asking 255 people to fill out actual state disclosure forms for one of three states – California, Colorado or Missouri – which have fairly standard campaign-finance laws. Using a hypothetical scenario of grass-roots political activity, participants had to register as a political committee and report contributions and expenditures.
Over 90 percent of the participants had no idea they needed to register as a political group to speak about ballot issues. In the real world, they would run afoul of disclosure laws just out of ignorance.
In the experiment, participants were absolutely flummoxed by the forms and instructions. Every single one failed miserably. People were frustrated, calling the process “confusing,” “ridiculous” and “worse than the IRS!” Several said they would need a lawyer to complete the forms; the lawyer in the study said he also needed help. Nearly 90 percent agreed that this red tape and the specter of legal penalties would deter citizens from political activity.
That specter is real. The basis for my experiment was an actual group of neighbors in Parker North, Colo., who used yard signs, flyers and meetings to oppose annexation of their neighborhood of 300 – and were sued by political opponents for violating campaign-finance laws.
The debate over campaign-finance “reform” has ignored the rights of ordinary citizens to voice their views, and now those rights are slipping away. As citizens exercise their right to vote this Election Day and attention turns to an even bigger election in one year, it is time to revive another fundamental political freedom – the right to free speech.
Jeffrey Milyo is the Hanna Family Scholar at the Center for Applied Economics in the Kansas University School of Business and author of “Campaign-Finance Red Tape: Strangling Free Speechand Political Debate,” available at ij.org.