What do Ken Bennett and Nancy Pelosi share? New ideas for chilling speech

by Nick Dranias
Goldwater Institute
 
Almost a month ago, the U.S. Supreme Court declared in Citizens United v. F.E.C. that there is no such thing as a “de minimis”–or insignificant–denial of free speech. The ruling should have immediately sparked a sweeping repeal of campaign speech regulations that were previously justified as imposing only a “de minimis” burden. An axe, not a scalpel, should have been taken to the volumes of complex, vague and burdensome campaign laws. Instead of seizing the moment, it appears Arizona Secretary of State Ken Bennett wants follow the lead of U.S. House Speaker Nancy Pelosi.

Secretary Bennett has joined Pelosi’s drive to preserve the barriers to political entry swept away by Citizens United. Instead of outright bans on campaign speech by individuals who associate through corporations or unions, the Secretary of State wants to kill campaign speech through regulation. Secretary Bennett wants to threaten class 6 felony charges against any individual or group spending $500 or more to promote their political ideas unless they register with the State and continuously report their expenditures every 24 hours during an election season.

Political elites easily navigate such laws. But they will confuse ordinary people, deter them from seeking a voice in politics, and entrap them with mistakes that will expose them to serious criminal charges. Advocates of these new regulations have no idea how they would impact newer methods of political expression, such as Internet blogging.  And no one at a recent meeting called by the Secretary of State could identify any actual problem the regulations were meant to fix. The justification was that something had to be done, and the State could always clean up the mess later. Besides, the advocates reasoned, the Supreme Court did not strike down reporting laws.

Only politicians, bureaucrats, and lobbyists could agree with the argument that anything that can be regulated under the Constitution should be regulated. Citizens United does not embrace prior restraints on free speech in the guise of campaign registration and reporting requirements. Rest assured, if Secretary Bennett and Speaker Pelosi go too far, the Goldwater Institute won’t let the State transmute the golden principles applied in Citizens United into a leaden excuse for diminishing our most fundamental rights.

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.


Comments

  1. The most radical idea I had heard so far was forcing any public company before it spends money on a campaign to hold a shareholder vote and pass it first.

  2. So its not a felony to enter this country unlawfully and take up residence in the State, but it is a felony for individuals to promote a political idea. Are we having an epidemic of rabies in government? I think so.

    It’s not clear from this article that Bennett has the authority to establish this regulation.

    When residents stop caring about the privilege to govern themselves, this is what you get.

  3. If Bennett is trying to target criminally indicted organizations like ACORN, this is not the way to do it. Conceivably, a person who creates a political blog becomes a felon once he spends $500 on ISP and hosting fees. Since the State has so much money for law enforcement, I would like the SOS to target voter fraud and testing voting machines for accurately.

  4. C’mon Nick. Ken is no Nancy. The headline is a bit too harsh. Some reporting is going to have to be implemented. Everyone knows that to be the case. The ‘little folks’ are able to sufficiently navigate our disclosure laws now and the high initial threshold will exclude most small dollar i.e.s anyway.

  5. One wonders whether Bennett or for that matter Jan Brewer are being affected by loyalty to the author of the McCain-Finegold bill which SCOUS, to its credit, eviscerated!

  6. CJ #4: The headline has to be harsh. It has to make a splash because the GWI is increasingly becoming more of a pulpit for personalities and money-making than a conservative policy think-tank.

    Unfortunately, Goldwater has traded in solid conservative ideas and policies for splashy headlines and reckless accusations in order to get donors to send in the money. The bigger the headlines, the bigger the checks – for now. Someday soon Nick and Clint are going to overplay their hand and the donors will start asking how their money is being spent and why good conservatives are being eviscerated with their money. On that day, they will lose their pulpit and hopefully GWI will regain a good reputation.

  7. Nick Dranias says

    There’s nothing overplayed in my TN. This is a no brainer issue for genuine conservatives and limited government advocates. Please do note, however, the TN was written before the SOS’s bill was dropped. The delay is inherent in our internal editing process. Anyway, my TN references the draft circulated by the Secretary of State’s office last week. The link is published with the TN, and it is http://www.goldwaterinstitute.org/file/4431/download/4433

    It sounds like the bill that was dropped is marginally better than the proposed bill I critiqued, but even the bill that was dropped suffers from essentially the same criticism.

    For example, the bill still requires the continuous 24-hour reporting schedule, although it raised the base threshold to $1000, and triggers reporting obligations each time you exceed that base threshold. Here’s the 24 hour reporting schedule language:

    “A…. Any corporation, limited liability company or labor organization that makes cumulative independent expenditures in an attempt to influence the outcome of a candidate election and in at least the following amounts shall register and file with the appropriate filing officer a notification not later than one day after making that expenditure, excluding Saturdays, Sundays and other legal holidays:”

    “B… shall report each additional accumulation of expenditures that exceeds the threshold amount prescribed in subsection A of this section”

    The biggest problem with the new language is that it still does not pin down a clear definition of “expenditure” so that the date of the “expenditure” triggering registration and reporting requirements is clearly knowable. It only says: “For the purposes of this section, an expenditure occurs no later than the date on which literature or advertisements are deposited at the post office for mailing, submitted to a communications system for broadcast or submitted to a newspaper or similar print medium for printing and, with respect to an expenditure for signs, the date on which a sign is first posted.” This says nothing about whether the expenditure happens at the point the obligation is incurred, contingent or otherwise, the point the obligation becomes due and payable, the point the obligation is paid, etc. This is a crucial omission from a constitutional perspective because no anti-corruption purpose is served by a disclosure that predates the actual publication date of the campaign promotion. The only reason to want to know the date the related obligation is incurred, rather than when the related publication is made, is to force third parties to give advance notice of their intentions regarding the publication of anticipated independent expenditures. And the only reason anyone would want to know that, is to enable campaigns to anticipate campaign tactics and strategies by supporters and opponents, and to enhance their ability to maintain message control. That purpose is not sufficient justification for registration and reporting requirements under any case I know of.

    Finally, a class 6 felony is still threatened simply for failing to timely report and notify of expenditures because the bill maintains A.R.S. 16-919 D, which says that all corporate and union expenditures are class 6 felonies for anyone effectuating the expenditure unless compliance is made with A.R.S. 16-914.02. Also, although vague, the felony threat also exists because A.R.S. 16-914.02(E) says, without specifying that the class 6 felony threatened in A.R.S. 16-914.02(I) does not apply, “If the secretary of state or other filing officer does not receive the notarized sworn statement within the required three day time frame, the filing shall be categorized as both unverified and delinquent and all penalties prescribed in this section apply.”

    I utterly reject the notion my critique is overly harsh. Just swap out “gun expenditures” for the word “expenditures” and just about anyone on our side of the spectrum would get it. The idea that folks are willing to regulate ideas more intensely than guns is absurd and dangerous. And, indirectly, it threatens gun rights because the best constitutional protection there is, exists for political speech. If we can regulate the heck out of political speech, gun rights are on the block next.

    If anything, the headline should have been stronger. Its time for the Right to stop the strategery and tinkering with the regulatory state. When a case like Citizens United comes down the pike, that is a call to arms and to aggressively reform and shrink government intrusion.

  8. Why does the Goldwater Institute want to keep me from knowing who is funding candidates for public office?

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