OPINION:
The Supreme Court has spent years making it increasingly difficult for governments to restrict political speech. New York state legislators appear determined to go in the opposite direction.
A bill recently introduced in Albany would dramatically expand the kinds of political communications subject to New York’s already burdensome independent expenditure laws.
It would also expose independent expenditure committees to almost unimaginable penalties. This should concern anyone who thinks the government is supposed to protect, not license, political speech.
The bill was introduced by Democratic state Sen. Andrew Gounardes of Brooklyn. Mr. Gounardes claims the measure is needed to close “loopholes” in New York’s campaign finance disclosure laws.
The legislation would bring certain communications within the definition of “independent expenditure” even when they do not mention or expressly advocate for or against a candidate.
That is problematic.
Under the proposal, a communication could qualify as an independent expenditure simply by using language or imagery “substantially associated with” a candidate’s campaign, platform, background or publicly stated positions such that a “reasonable viewer” would understand the communication to pertain to the candidate.
The communication would not even have to identify the candidate by name to be caught up in these new rules.
Imagine that near an election, an organization wants to criticize a candidate’s policy, but not the candidate himself. The organization does not urge people to “vote against” the candidate, nor does it say anything negative about the candidate.
It does not even mention the candidate’s name. It merely criticizes an issue closely associated with him. Under the proposed law, that might be enough to transform ordinary issue speech into a heavily regulated independent expenditure.
For an organization sponsoring an ad that, under this proposal, would constitute an independent expenditure, the results could be catastrophic. The bill would raise the existing state penalty for failing to identify or for falsely identifying certain independent expenditures to as much as $1 million per day, or the cost of the communication, whichever is greater. Separately, it provides for penalties of up to $5 million per day for knowing and willful violations.
This is not a fair and reasonable compliance penalty. It is a threat capable of bankrupting even the best-funded political organizations.
That matters because campaign finance regulation does not operate in a vacuum. Organizations make decisions under severe time pressure, often during the busiest and most consequential weeks of an election. If the law says that an advertisement may or may not be subject to the state’s campaign finance regulation regime, the rational response for many organizations will be simple: Play it safe and do not run the ad.
That is suppressed political speech at its worst, and the chilling effect will not fall equally on all speakers.
A wealthy, well-established organization may be willing to take a legal risk that a small, grassroots group cannot. A corporation may have attorneys and millions of dollars available to defend against a campaign finance enforcement action. A small group of concerned citizens who pooled a few thousand dollars to speak about a hot issue in their community will not.
A law intended to make political spending more transparent could therefore ultimately make political participation more unequal. It would leave the deepest-pocketed individuals and organizations best positioned to speak while forcing everyone else to remain silent.
This is all especially troubling given the trend of First Amendment law. In June, the Supreme Court struck down federal limits on political parties’ coordinated expenditures in National Republican Senatorial Committee v. Federal Election Commission. The court reasoned that political parties could not “corrupt” their own candidates and therefore the government could not limit their ability to coordinate campaign spending with those candidates.
The New York proposal heads in precisely the opposite direction from where the courts are going.
The Empire State’s Democratic establishment has spent the better part of a decade claiming to be at the vanguard of defending democracy. Should this bill become law, the Democratic establishment will find that democracy is in danger in its own state when citizens who wish to speak about issues and ideas refuse to put their financial solvency at risk by exercising that right.
• Joseph Burns is a New York-based partner in the law firm Holtzman Vogel.
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