Pettifogged Into Silence

By George Will (Archive) · Thursday, February 2, 2012

FOUNTAIN HILLS, Ariz. -- Dina Galassini does not seem to pose a threat to Arizona's civic integrity. But the government of this desert community believes you cannot be too careful. And state law empowers local governments to be vigilant against the lurking danger that political speech might occur before the speakers notify the government and comply with all the speech rules.

Last October, Galassini became annoyed -- like many Ron Paul supporters, she is easily annoyed by government -- about the city's plan to augment its spending with a $29.6 million bond issue, to be voted on by mail by Nov. 8. On Oct. 6, she sent emails to 23 friends and acquaintances, urging them to write letters to newspapers and join her in two demonstrations against the bond measure. On Oct. 12, before she could organize the demonstrations, she received a stern letter from the town clerk: "I would strongly encourage you to cease any campaign-related activities until the requirements of the law have been met."

State law -- this is the state of John McCain, apostle of political purification through the regulation of political speech -- says that anytime two or more people work together to influence a vote on a ballot measure, they instantly become a "political committee." This transformation triggers various requirements -- registering with the government, filing forms, establishing a bank account for the "committee" even if it has raised no money and does not intend to. This must be done before members of this fictitious "committee" may speak.

Galassini wrote to ask the clerk if it would be permissible for her to email the 23 persons telling them the demonstrations were canceled -- she got no response -- and told the clerk, "This is all so confusing to me." Confusion and inconvenience -- Galassini could have made an appointment for tutoring by the clerk's office concerning permissible speech -- are probably intended consequences of laws designed to burden political speech that is potentially inconvenient for government. Galassini gave up trying to influence the vote.

The Supreme Court, in its splendid 2010 Citizens United decision, said laws requiring licenses or other official permission to speak "function as the equivalent of prior restraint by giving the (government) power analogous to licensing laws implemented in 16th- and 17th-century England, laws and governmental practices of the sort that the First Amendment was drawn to prohibit." Paul Avelar of the Institute for Justice, the nation's only libertarian public-interest law firm, which is helping Galassini contest the constitutionality of Arizona's law, says such niggling nuisances are proliferating nationwide.

A Florida law requires disclosure, including the name and address of the contributor, of any contribution, no matter how small -- a penny for your thoughts? report it -- to a political committee. A Washington state law is notably protective of the political class: There must be litigation before a campaign to recall a public official can start, and lawyers are essentially forbidden from volunteering their help with that litigation. In Mississippi, anyone can put up his or her own Web page about a ballot issue, but the Web page designer must disclose the time he or she took to do it. And anyone who spends more than $200 on political speech -- say, a small ad in a local newspaper -- is required to give the government monthly reports about his or her political activity.

Such pettifogging laws reflect, aside from the joy governments derive from bossing people around, the current rage for regulating political speech lest ... what? Campaign regulations usually focus on money, supposedly to prevent quid pro quo corruption or the appearance thereof pertaining to candidates. But many laws cover activities involving ballot measures, which suggests that for reformers, limiting political speech is itself the goal. Hence their obsession with political money, most of which funds the dissemination of speech.

Nationally, political hygienists are regretting their inadvertent creations, this year's super PACs, entities run by supporters of presidential candidates, but forbidden to "coordinate" with the candidates. Super PACs are spending money that the reformers, by imposing low limits on contributions to candidates and parties, have diverted away from campaigns that otherwise could be held directly accountable for, and judged in terms of, the speech they finance. We hear, yet again, the reformers' cry: "There is too much money in politics." This year, the presidential campaigns combined may spend almost $2 billion, which is almost as much as Americans will, in a few weeks, spend on Easter candy.

(c) 2012, Washington Post Writers Group

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