by Nick Dranias
Goldwater Institute
Almost two years ago, in Citizens United v. Federal Elections Commission, the Supreme Court ruled that the First Amendment prohibited the government from forcing any corporation, union or other association to channel their money through a political action committee in order to make independent expenditures. Arizona responded by thumbing its nose at the decision.
Under the guise of requiring disclosure of independent expenditures, the state enacted a law that effectively forces any corporation, union or limited liability company that exists “primarily” to influence elections to channel its independent expenditures through a political committee. Now, in the name of transparency, the Arizona Secretary of State is engaged in a headlong effort to enforce compliance with this unconstitutional regulatory regime.
Independent groups are right to resist. Applied to independent expenditures, Arizona’s political committee regulations are essentially the same as those struck down in Citizens United. Both threaten civil or criminal penalties merely for raising and spending money to talk about politics.
To avoid such sanctions, both sets of regulations require forming and registering an elaborate political organization, complete with segregated accounts, appointed officers and responsibility for regular financial reporting, as well as exposure to audits by governmental agencies. This forces groups who want to engage in political speech to develop an expertise in volumes of campaign finance laws, related regulations, and agency interpretations of regulations.
As a result, both sets of regulations minimally impact well-funded, politically-connected groups, but heavily impact the least sophisticated, the least connected, and the most underfunded.
Neither the federal government nor Arizona have the constitutional authority to require such high regulatory hurdles for independent groups engaging in free speech. The First Amendment does not allow “transparency” to become a banner under which the government silences independent voices.
American citizens have a constitutional right to spend money expressing their support or opposition for candidates. That right is not forfeited when they organize a corporation, union or limited liability company to serve as the means of pooling their resources.
Nick Dranias holds the Clarence J. and Katherine P. Duncan Chair for Constitutional Government and is director of the Joseph and Dorothy Donnelly Moller Center for Constitutional Government at the Goldwater Institute.
Learn More:
Goldwater Institute: Citizens United v. Federal Election Commission: A Case for Limiting Campaign Finance Regulations
A.R.S. § 16-902 (2011): Arizona Political Committee Regulations
A.R.S. § 16-901 (2011): Arizona Statutory Definitions
A.R.S. § 16-919 (2011): Criminal Sanctions for Contributions other than to Independent Expenditure Committee
What’s with these guys? They’re totally ignoring the IRC but they’re determined to open the spillway of unlimited unreported corporate and union money directly into the election cycle. Additionally, they carried the water for the Chamber by neutering the Clean Elections program AND they’re not satisfied with that, these gonzo lawyers continue their attacks on the activities of the Clean Elections Commission.
Nick and Clint – who do you really serve? Crony-Crapitalism it looks like from here. In the name of “free speech” they want the voters and public totally in the dark as to how much money big union and corporate interests dump into candidates like Jeff Flake and others of the usual political class. The Institute was never this blatant in their single mindedness and so obvious at who’s interest they held above all others.
Maybe its time for their mantle to come down and for the G.I. to hang out a shingle: For Sale to the Highest Bidder.
Unlimited corporate and union money already goes into ballot measures. That spending dwarfs that of people trying to get elected. The amount corporations and unions spend on lobbying is also unlimited. What is limited by law is MY ability to give MY money to candidates of MY choice. When is someone going to look out for MY political class?