- - Monday, September 22, 2014


The best time to speak out about the policy issues you believe in is during the time of year when the most people are paying attention — the election season. Whether your opinions are popular or not, Americans have a First Amendment right to speak out to the public and their members of Congress about these issues. As President Obama has said, “Americans have fought and died around the globe to protect the right of all people to express their views — even views that we disagree with.”

Sadly, our First Amendment rights to free speech are currently being restricted by misguided federal campaign-finance regulations. As it stands, groups and individuals often cannot advocate for the causes they believe in during the election season, even if they don’t support or oppose a candidate, unless they jump through the Federal Election Commission’s regulatory hoops and disclose the names, addresses and employers of their supporters to the FEC, and consequently anyone else with an Internet connection.

The Independence Institute, a Colorado-based nonprofit organization that “educates citizens, legislators and opinion makers about public policies” is challenging this constitutional violation in court. The organization wants to run ads informing the people of Colorado about the misguided federal sentencing rules, and urging Colorado’s representatives in Congress to support reform. The group’s tax status bars the group from supporting or opposing candidates, and the ad itself has no political message at all. It is still a violation of law for the institute to run these ads unless they reveal the private information of their supporters.

The Center for Competitive Politics, representing the institute in court, argues that its donors shouldn’t have to choose between speaking their minds on political issues and telling the government where they work and live. Donors who might help fund the ads won’t open their checkbooks if they lose their privacy.

The disclosure mandate imposed on the Independence Institute’s desire to run these issue ads stems from 2002’s McCain-Feingold campaign-finance law. That law created new speech regulations on so-called “electioneering communications,” defined as any TV or radio ad, regardless of content, that simply mentions a candidate for office within 60 days of an election. These communications mandate the forced disclosure of supporters’ personal information.

At the same time, the Independence Institute is a charitable 501(c)(3) organization — an IRS designation that strictly prohibits a group from engaging in “political activity.” The discrepancy between these two legal constructs has created an unusual situation. On the one hand, the government insists that the Independence Institute engage in no political speech and, on the other hand, the government mandates that the institute disclose its donors in order to speak out about a government policy on the incorrect legal grounds that any speech within 60 days of an election supports or opposes candidates.

In the landmark Supreme Court ruling Buckley v. Valeo, the court made clear that issue advocacy, like that of the Independence Institute, is protected by the First Amendment. Here, the law attempts to unconstitutionally regulate this pure issue advocacy.

As significant as the constitutional and legal problems are, however, the potential dangers posed by these FEC disclosure rules may be greater. We have already seen this type of FEC disclosure of personal information lead to significant harms.

Take the case of Gigi Brienza, who was threatened by a radical animal-rights organization because campaign-disclosure rules forced her to declare her employer — in this case a company that did animal testing. Or the supporters of the controversial Proposition 8 in California who were harassed in 2008 because their homes and employers were disclosed. Or the thousands of campaign donors who were threatened by the liberal group Accountability America with legal action or IRS investigations if they continued to donate to conservative causes, their names having been obtained from campaign-disclosure laws.

This is campaign-finance disclosure gone badly awry. The purpose of disclosure is to allow citizens to monitor government, not to allow government bureaucrats to monitor citizens. And these laws are certainly not meant to allow political activists avenues for personal attack. The end result of such abuses of the law is less speech through the silencing of Americans who want to participate in an open democratic debate.

That is why the Independence Institute’s constitutional challenge is important. It reminds the government that its purpose is to protect Americans, not endanger them, that we need more discussion of public policy issues, not less, and most importantly of all, that we don’t lose our First Amendment rights just because it’s an election year.

Scott Blackburn is a research fellow at the Center for Competitive Politics, which is representing the Independence Institute in court.

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