Campaign regs shouldn't silence the public: Column

Paul Sherman | USATODAY

In the nearly four years since the U.S. Supreme Court handed down its controversial ruling in Citizens United v. FEC, there has been a lot of debate about whether corporations and unions should be permitted to spend money on electoral speech. But no matter what side of that debate you come down on, here's something everyone should be able to agree with: When it comes to participating in elections, ordinary Americans shouldn't have fewer rights than corporations and unions do.

Astonishingly, federal courts across the country have rejected that commonsense principle. As a result, in most states, grassroots groups that wish to speak out in elections have to deal with regulations and red tape that the U.S. Supreme Court has already held are unconstitutionally burdensome for corporations and unions.

The culprits are so-called "political committee" laws. In virtually every state, people who pool more than a trivial amount of money to express a political message related to a candidate or ballot issue must form a "political committee," often referred to as a "PAC."

PACs are the most heavily regulated entities under campaign-finance laws. Indeed, they are so heavily regulated that, in Citizens United, the Supreme Court held that forcing well-financed corporations and unions to speak through a PAC amounted to a "ban on speech."

Nathan Worley, Patricia Wayman and John Scolaro, residents of Sarasota, Fla., learned about the burdens of PAC laws firsthand in 2010 when they wanted to spend $600 on radio ads opposing a proposed amendment to the Florida Constitution related to property rights.

Had Nathan and the others been a corporation or a union, they could have run their ads without filing any paperwork with the government. Instead, because they were an unincorporated grassroots group, they would have been required to form a PAC in order to spend more than $500. That would have meant opening a separate bank account, paying for all expenditures out of that account, filing reports with the government, tracking and disclosing every contribution and expenditure down to the penny, and complying with a host of other regulations.

For grassroots groups without the ability to hire a lawyer, running a PAC also means stepping into a minefield of potential legal violations. A 2007 study by University of Missouri economist Jeff Milyo found that out of 255 adult subjects, not one was able to accurately fill out the paperwork required for running a PAC. Every one of them would have been subject to legal penalties. And that risk isn't hypothetical. The Florida Elections Commission itself estimates that 98 percent of the complaints it receives are politically motivated attempts by groups seeking to harass or punish their political opponents.

Unwilling to run these risks, but also unwilling to remain silent, Nathan, Patricia and John decided to fight back. Represented by the Institute for Justice, they filed a federal lawsuit challenging Florida's PAC requirement for grassroots groups.

Unfortunately, last June — after nearly three years of litigation — the 11th U.S. Circuit Court of Appeals rejected their challenge. In doing so, it joined the 4th, 7th, 9th, and D.C. Circuits in holding that multinational corporations and unions enjoy greater freedom to speak out in elections than do unincorporated grassroots groups.

These rulings essentially outlaw the sort of spontaneous political expression that is vital to a healthy republic. Under the First Amendment, the only thing a grassroots group should need in order to talk about politics is an opinion. But thanks to burdensome PAC regulations, these groups need more than an opinion — they also need a lawyer.

As if the speech-squelching effects of these laws weren't bad enough, there is little evidence that these laws provide any offsetting public benefits. A recent study conducted by University of Rochester political scientist David Primo attempted to measure the effects of PAC laws like Florida's, and found that they provided voters with little useful information beyond what was already available from other sources.

Thankfully, the Supreme Court now has a chance to fix this problem in Florida and across the country. Thursday, the Institute for Justice filed a petition for certiorari asking the Supreme Court to take up the 11th Circuit's decision and make clear, once and for all, that laws that are unconstitutionally burdensome for General Motors and the AFL-CIO are unconstitutionally burdensome for ordinary Americans.

That ruling may come too late for Nathan, Patricia and John, who have already lost forever their chance to speak out in the 2010 election, but it cannot come soon enough for the thousands of Americans who will be silenced during the next election if the Supreme Court does not act.

Paul Sherman is a senior attorney at the Institute for Justice, which represents the petitioners in Worley v. Florida Secretary of State.

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