Archive for the First Amendment Category

A Final Conversation with Ken Gordon

Ken Gordon was always baffling to me—how could such an intelligent man be wrong about practically everything? Gordon was one of my favorite Democrats despite our frequent disagreements, and I was saddened to learn that he passed away suddenly Sunday.

If memory serves, I first met Gordon in the political aftermath of the horrific Columbine High School murders, when he wanted more restrictive gun laws and I defended people’s right to keep and bear arms. Among other things, Gordon wanted additional liability for gun owners; I argued the laws he proposed would be used to persecute gun owners and that existing laws adequately addressed such matters as child endangerment.

More recently, Gordon and I tangled over the campaign finance laws; you can view a first and second debate between us.

Just a couple weeks ago Gordon and I exchanged emails on the subject. Sadly, that is the final conversation we will share. I thought I’d reproduce it here in his honor.

On December 10, Gordon sent out an email to a list to the effect that people don’t like big money in politics. I thought I’d get in a quick dig by pointing out that, in the recent recall elections in which two Colorado Democrats lost their seats in the state senate, the politicians lost despite huge spending advantages. I wrote, “Yes, isn’t it just wonderful that Morse, Giron, and Am. 66 lost despite radical spending advantages?”

He responded:

You are cherry picking examples to suit your position. In the vast majority of cases the most well funded candidate wins, and you know this. Are you in favor of unlimited contributions and expenditures in campaigns? If so you are in favor of a Congress similar to the current one which cares more about the capital gains rate than it does about hunger, because that is what the funders care about.

A libertarian philosophy leads to vast concentrations of wealth and political power in the hands of the few and the destruction of the concept of political equality.

Ken

I wrote back:

“You are cherry picking examples to suit your position.”

I wasn’t making an argument here; I was merely responding positively to your point that many people do not respond to high-dollar campaigns.

“In the vast majority of cases the most well funded candidate wins, and you know this.”

In most cases, a candidate is well funded because the candidate has a lot of popular support. To a substantial degree you’re reversing cause and effect.

“Are you in favor of unlimited contributions and expenditures in campaigns?”

Yes. If contributions are limited, then who is doing the limiting? The answer is government. When government forcibly prevents people from spending their own resources on speech, then that’s censorship, and I oppose censorship.

“If so you are in favor of a Congress similar to the current one which cares more about the capital gains rate than it does about hunger, because that is what the funders care about.”

That’s a non-sequitur. (As a matter of fact, I think Congress should be involved with capital gains at the same level that it is involved with hunger, which is to say not involved at all.)

“A libertarian philosophy leads to vast concentrations of wealth and political power in the hands of the few and the destruction of the concept of political equality.”

a) I’m not a libertarian. b) My political philosophy calls for minimal political power, such that it can be concentrated neither in the hands “of the few” nor in the hands “of the many.” c) I advocate equal legal protection of individual rights, not coercively achieved “equality” of outcomes.

Thanks, -Ari

He replied:

Well I think we agree on some of this.  I don’t want coercively achieved equality of outcomes. I want equal opportunity, including the opportunity to fail.  To me this seems to be an argument for a good public education system.  How do you feel about this?

Ken

I thought we’d already had a pretty ambitious email exchange for one day, and I didn’t want to get into a deeper discussion about “public” education, so I let the matter go.

I was always pleased when I helped beat Ken in his political battles and always sorry when he beat me. But I was honored to trade barbs with him, and I’ll miss the opportunity to do so again.

Notes on Money in Politics

This evening I’m scheduled to talk about money in politics with a local college class. As I’m looking up some articles for this purpose, I thought I might as well provide some links and discussion here.

The main point of this evening’s discussion is to debate Amendment 65, about which I have written and spoken at length. Please see my collected commentary and links. However, my hope is to take the conversation in a broader direction tonight. The main question I want to examine here is how much “big money” actually influences politics. Of course, this issue represents only a small slice of the discussion, but a relevant one.

The main thesis in this regard is a simple one: People have brains. We are not mindless automatons, zombies passively influenced by whatever advertisements impinge on our senses. Rather, we have the capacity for reason, for thinking critically about the messages we see. When we’re talking about money in politics, we’re talking about people spending resources in an effort to persuade others (voters) to behave in a certain way. Because people have reasoning minds, the impact of money in politics is necessarily limited.

Let’s begin with some comments from Steve Simpson (shown in the photo), whom I interviewed this summer:

There are too many examples of expensive advertising flops or rich candidates who lost elections to take seriously the claim that money buys elections. Ross Perot, Michael Huffington, Meg Whitman, Jon Corzine—the list of candidates who have spent huge amounts of money and lost goes on and on. A certain amount of money is necessary to be a contender in an election. Beyond that, candidates win or lose because they have messages and support policies that the voters like.

To take a Colorado example, last year, Colorado voters rejected Prop. 103, a school tax measure, by a margin of 63 to 37 percent—an overwhelming defeat by any measure. And yet, as the Denver Post reported, “Supporters raised more than $600,000 in the effort to pass 103, while opponents raised less than a tenth of that.”

In 2003, Colorado voters rejected Referendum A, concerning water bonds, by even bigger margins: 67 to 33 percent.

A Denver Post article from November 5, 2003 (“Colorado In ‘No’ Mood,” by Joey Bunch) reviews:

Referendum A appeared headed for easy passage. Owens put his campaign aces on Referendum A and helped raise more than $750,000 to promote its passage.

He collected huge donations from corporations and residential developers.

The opposition group Vote No on A raised less than half that. High-profile opponents included Attorney General Ken Salazar and former governors Dick Lamm, Roy Romer and John Vanderhoof.

Moving to broader studies, Stephen Dubner summarizes a paper by his Freakonomics coauthor Steve Livitt finding that a candidate can double or halve campaign spending and impact the outcome only by a point in either direction.

Dubner continues:

What Levitt’s study suggests is that money doesn’t necessarily cause a candidate to win—but, rather, that the kind of candidate who’s attractive to voters also ends up attracting a lot of money. So winning an election and raising money do go together, just as rain and umbrellas go together. But umbrellas don’t cause the rain. And it doesn’t seem as if money really causes electoral victories either, at least not nearly to the extent that the conventional wisdom says. For every well-funded candidate who seems to confirm that money buys elections (paging Michael Bloomberg), you can find counterexamples like Meg Whitman, Linda McMahon, Steve Forbes, and Tom Golisano.

Dubner also rounds up the views of other economists, including Jeff Milyo, who writes:

[L]arge shocks to campaign spending from changes in campaign finance regulations do not produce concomitant impacts on electoral success, nor do candidates with vast personal wealth to spend on their campaigns fare better than other candidates.

These findings may be surprising at first blush, but the intuition isn’t that hard to grasp. After all, how many people do you know who ever change their minds on something important like their political beliefs (well, other than liberal Republicans who find themselves running for national office)? People just aren’t that malleable; and for that reason, campaign spending is far less important in determining election outcomes than many people believe (or fear).

But what of the left’s endless incantation, “Corporations aren’t people!” Besides the obvious fact that corporations are composed of individual people, each of whom with rights, it just ain’t true that corporate spending dominates politics.

Steve Chapman writes for Reason: “Of the $96 million donated to these political operations [Super PACs], 86 percent has come from individuals and less than 1 percent from publicly traded corporations. Major companies almost unanimously have concluded that they have more to lose than gain by wading into polarizing political campaigns.”

“But what about the rich people?!” The advocates of Amendment 65 explicitly call for the censorship of “the rich”—so apparently the wealthy aren’t people, either.

The problem of money in politics is not much of problem. But the “solution” of censoring political speech is extraordinarily dangerous. Liberty can survive stupid campaign ads. It cannot survive censorship.

Related:

Image of Steve Simpson: Institute for Justice

The Secret Big Money Behind Amendment 65

Does it strike anyone but me as ironic that those wanting to “get big money out of politics” are spending big money to promote their political agenda?

Three groups are registered “Issue Committees” to promote Amendment 65, the Colorado ballot measure seeking a U.S. amendment allowing politicians to restrict campaign spending (i.e., censor political speech).

Those groups (and their leaders) are Coloradans For Equal Opportunity (Mary Phillips), Coloradans Get Big Money Out of Politics (Elena Nunez), and Fair Share Committee to Get Big Money Out of Politics (Kirsten Schatz). (There is no group registered against the measure; obviously a few individuals, including me, have spoken against it.)

The first group hasn’t raised much money. The other two groups, however, have raised and spent significant funds. Following are the amounts raised, as reported by the Secretary of State:

Fair Share Committee to Get Big Money Out of Politics

October 1: $175,000 monetary contributions. Interestingly, that entire amount came from the Fair Share Alliance in Washington, DC.

September 17: $2,691 non-monetary contributions. Can you guess the source? Yes, the Fair Share Alliance.

September 4: $41,197.90 non-monetary contributions, all from Fair Share Alliance.

August 1: $365,689.96 non-monetary contributions, mostly from Fair Share Alliance (mostly for signature gathering).

Coloradans Get Big Money Out of Politics

October 15: $930 monetary contributions plus $7,469.60 non-monetary contributions, mostly from Common Cause. (Note that Elena Nunez is the Executive Director of Colorado Common Cause.)

October 1: $5,300 monetary contributions plust $6,799.14 non-monetary contributions, mostly from Common Cause. (A number of individuals made monetary contributions.)

September 17: $4,795.48 non-monetary contributions, mostly from Common Cause.

September 4: $35,371.04 monetary contributions plus $1,002.15 non-monetary contributions. This includes $12,921.04 in monetary contributions from Common Cause and $15,000 from People for the American Way of Washington, DC.

August 1 (amended): $81,881.96 monetary contributions plus $31,867.77 non-monetary contributions, mostly from Common Cause.

July 2: $165 non-monetary contribution from Colorado Common Cause.

* * *

In sum, two main groups, Fair Share Alliance and Common Cause, have dumped hundreds of thousands of dollars—mostly “secret” money funneled from one group to another—into the Amendment 65 campaign to “get big money out of politics.” Interesting tactic, that.

Related:

Image of Elena Nunez hosted by Picasa

Top Ten Reasons Why Colorado Amendment 65 Is a Truly Horrible Idea

I just released a short (2:45 minute) video summarizing my case against Amendment 65. The transcript, from which I strayed only slightly, follows. See also my main document on Amendment 65.

Colorado Amendment 65 asks politicians to support “an amendment to the United States Constitution that allows Congress and the states to limit campaign contributions and spending.”

Why is this a truly horrible idea?

1. Amendment 65 would impose censorship, giving government power to forcibly restrict who may speak, how they may speak, or what they may say.

2. Amendment 65 would, for the first time in the nation’s history, repeal a portion of the Bill of Rights. The First Amendment begins, “Congress shall make no law” restricting free speech. Amendment 65 says Congress should make such laws.

3. Amendment 65 threatens to violate people’s right to speak out on political issues, whether alone or as part of a group, such as a corporation or a union.

4. Any censorship law will leave so-called “loopholes,” leading to calls for additional restrictions. The logical and inevitable result is the censorship of documentaries, books, and newspapers, in addition to flyers and television ads.

5. Amendment 65 would give incumbent politicians the power to silence their critics. That is inherently corrupt.

6. Amendment 65 would give powerful interest groups a means to silence their opponents with less political power.

7. Amendment 65 would create bureaucratic hurdles for small groups to speak out, while large groups with tons of money would just hire more attorneys to find the loopholes and comply with the bureaucratic rules.

8. Although it is true that “money isn’t speech,” we must spend resources to publicly advocate our ideas. Censorship by restricting how people may spend resources on speech is still censorship.

9. It is not true that people who spend more “drown out” others’ voices. For example, Pat Stryker, who is worth $1.4 billion, has spend millions on Colorado politics, yet she has not restricted my ability to speak at all. The only party who can restrict my ability to speak is the government censor.

10. You have a brain! We have the ability to think independently about political ads. We don’t need to forcibly restrict them. I’m as annoyed as anyone by these political ads, but the price of free speech is that we have to put up with speech we find annoying or even abhorrent.

For more about why Colorado Amendment 65 is a truly horrible idea, please see my web page at AriArmstrong.com. See particularly “Colorado Amendment 65: An Assault of Free Speech.”

Colorado Amendment 65: An Assault of Free Speech

I regard the Colorado ballot measure Amendment 65 as a threat to freedom of speech. Here I collect my writings, talks, and videos on the matter. See also the information about Amendment 65 at the Secretary of State‘s web page or in the Legislative Council’s “Blue Book.”

On September 30, the Denver Post published my op-ed, “Amendment 65: An Intrusion On Our Right to Free Speech.” Following are some excerpts:

Amendment 65 . . . asks the foxes to guard the hen house. It asks incumbent politicians and their appointed bureaucrats to restrict the very speech that criticizes them. . . .

You have no right of free speech if you cannot spend your resources how you want on speech. With the possible exception of shouting over panhandlers on a street corner, every form of speech requires the expenditure of resources. . . .

Amendment 65 claims that, somehow, censorship will establish “a level playing field” for speech. But small groups are the ones that tend to get ensnared in speech restrictions, while big groups pay legions of attorneys to guide them through the inevitable loopholes. . . .

It is the government’s proper job to protect each individual’s right to speak freely, whether alone or as part of a group, not to forcibly silence some voices so that others face less competition.

On September 27, I spoke briefly at a forum in Wheat Ridge:

On October 2, I joined Amy Oliver on 1310 am to discuss Amendment 65. The complete audio file is available. One of the points I make is that, based on the premise that money corrupts politics, the last thing we should want to do is put corrupt politicians in charge of censoring speech.

Also on October 2, Mike Rosen spent his first hour discussing Amendment 65. He mentioned my Denver Post op-ed but spent most of his time discussing why the measure has no legal force.

Dave Kopel and Ken Gordon debated Amendment 65 on September 19; their hour-long discussion is well worth listening to.

I debated Gordon October 4 at an event hosted by AFGE 3607 Union. (My presentation begins at minute 16:56.) One lady asked about my views of mandatory disclosure. I answered her in brief following the formal presentation; you may read my more complete statement in an op-ed I wrote for the Colorado Springs Gazette last year. Here is the entire 44 minute debate:

October 6: Although overall I was pleased with my case when debating Ken Gordon, I decided that, on one point, I needed to further clarify my position. So I wrote an article for The Objective Standard blog, “When Politics Corrupts Money.” Here is an excerpt:

In hindsight, I should not have conceded, as I did, that “money corrupts politics” in some cases. True, some interest groups spend money on campaigns in the hope of receiving special government privileges, such as corporate welfare subsidies or coercive “protections” against their competitors. However, to concede that “money corrupts politics” wrongly implies that the modern political system is pure and noble until it is corrupted by money.

The proper way to describe the problem is that, within modern government, politics corrupts money.

Read the entire piece.

October 7: The Denver Post published three letters, two critical of me. Neither of those letters is remotely responsive to the arguments I made in my Post op-ed. Near the end of the first hour of his radio show on October 8, Mike Rosen discussed these letters and reiterated his reasons for opposing Amendment 65. Also, on October 11 the Post ran Rosen’s column criticizing the measure as “absurd and ineffectual.”

October 10: The Colorado Social Legislation Committee and the League of Women Voters of Colorado hosted a Denver forum on state ballot issues. As part of this forum, Elena Nunez of Colorado Common Cause and I debated Amendment 65:

October 11: I might mention a couple other Denver Post op-eds that support Amendment 65, one by Stephen Justino and another by Elena Nunez and Danny Katz, the primary sponsors of the measure. They do not raise any arguments that I do not address in my talks and articles. Luis Torro writes a tangentially related article in which he asks why the government should not impose “a consumer protection law for campaign ads.” The basic answer is three-fold. First, there are many ways to combat campaign deception, such as the newspaper article Torro cites. Second, libel law already does (or should) provide the legal remedy for egregious lies. Third, and perhaps most important, putting politicians and bureaucrats in charge of deciding which speech about politicians and bureaucrats is “truthful” is incredibly dangerous and inherently prone to abuse.

October 12: I had jotted down the link to Shawn Mitchell’s excellent article of a few weeks ago, “Progressive War on Speech and Liberty Continues.”

October 15: The October 12 edition of Westsider features a column by Andrea Doray, who contrasts free speech in America with oppression in various other nations. She writes:

When I tire of hearing the ads, especially the negative ones, I try to remind myself that free speech and freedom of the press make this knowledge available to me, and that I am able to make my own decisions and vote for the candidate of my eventual choice.

On October 13 I had the opportunity to debate Danny Katz of COPirg, one of the sponsors of Amendment 65, in front of the Jefferson County Democrats. I’m not sure the audio turned out well enough for me to release the video; but, anyway, I didn’t really cover any issue I haven’t covered elsewhere.

On October 14 I wrote an article for The Objective Standard, “Why Forcibly Limiting Campaign Spending is Censorship—And Why it Matters.” I focus on the expansive nature of the censorship laws in question.

I released a short video (2:45 minutes) summarizing my case against Amendment 65, “Top Ten Reasons Why Colorado Amendment 65 Is a Truly Horrible Idea.”

October 16: Watch Dave Kopel debate Elena Nunez. Kopel argues: “The fundamental point is that the First Amendment protects the right of everyone to freedom of speech. Whenever the government gets in the business of limiting freedom of speech, it will be to the benefit of the incumbent politicians.”

October 18: Today The Objective Standard published my article, “The Egalitarian Assault on Free Speech.” I explain why the left’s egalitarianism in the realm of economics has led it to advocate censorship in the realm of political speech.

Also, my debate with Ken Gordon about money in politics and Amendment 65 is now online:

October 21: This is a secondary issue, but I do think it’s an interesting detail that two main groups, the Fair Share Alliance and Common Cause, have dumped hundreds of thousands of dollars into their campaign to “get big money out of politics.” See my write-up.

October 31: The Denver Post‘s Vincent Carroll offers an excellent critique of Amendment 65, pointing out it could also lead to restricting how much money individuals may spend on their own races. He writes, “Amendment 65 is a quixotic attempt to take politics out of politics by trampling on our freedom.”

November 1: In preparation for discussing campaign finance with a University of Denver class taught by Andrew Romanoff, I prepared some notes. Also, the New York Times has compiled the basic statistics about spending on the presidential race this year. Honestly I was surprised to find that the overwhelming amount of spending came from the campaigns themselves, while PACs played a relatively small role.

Also, I thought Dave Kopel aptly summarized the nature of Amendment 65 for a Collegian article: “Amendment 65 is a blank check for government censorship of political speech.”

November 2: Please watch this excellent video from Learn Liberty on campaign spending restrictions:

Image: Ari Armstrong, Hosted by Picasa

Am. 65 Versus Free Speech

Yes, free speech can sometimes be annoying, but the only alternative to free speech is censorship, letting politicians and bureaucrats decide who may speak, how they may speak, and what they may say.

Colorado’s Amendment 65 calls for political control of campaign speech. Last night I delivered a short talk against it at the Wheat Ridge United Neighborhoods Election Preview Forum.

Gessler Announces Reasonable Campaign Rule Changes

Colorado Secretary of State Scott Gessler has done to best he can to make the rules surrounding the state’s campaign-finance laws more comprehensible and less oppressive. For daring to stand up for the free-speech rights of Coloradans to the degree his office permits, Gessler has earned the scorn of the pro-censorship left.

Contrary to the complaints of some of Gessler’s critics, Gessler is required by the Colorado Constitution to “promulgate such rules… as may be necessary to administer and enforce any provision of” the campaign finance laws (see Article XXVIII, Section 9(1)(b)).

Given that federal courts have struck down some aspects of those laws, Gessler must therefore promulgate rules that take the relevant court decisions into account.

As the Denver Post reports, yesterday Gessler implemented rules based on those considered at a December 15 hearing.

I attended that hearing, and I spoke out in favor of Gessler’s proposed rules. (I also harshly condemned the campaign laws as a violation of free speech, though obviously that broader issue lies outside of Gessler’s administrative capacities.)

Today I release another video of that hearing in which three people—Allen Dickerson, Regina Thompson, and Natelie Menten—also voice their concerns about the campaign-finance laws but (at least mostly) support Gessler’s efforts to clarify the rules and make them as unburdensome as possible. (Some of the meaning of their comments is fully clear only in light of the particular laws and rule changes under consideration at the hearing.) For more details about the campaign finance laws and about the rules Gessler helped to rewrite, please see the links below.

See also:

Campaign Finance Rules: Collected Testimony

Braunlich: CO Campaign Laws Chill Speech of New Activists, Small Groups

Gessler Emerges as the Free Speech Secretary of State

SOS Looks to Mitigate Burden of Campaign Censorship Laws

Braunlich: CO Campaign Laws Chill Speech of New Activists, Small Groups

Last month Colorado Secretary of State Scott Gessler hosted a hearing about proposed rules for Colorado’s byzantine campaign finance laws. I supported (most of) his proposed rule changes, even while condemning the campaign laws as a violation of free speech. Please see the videos of testimony by Diana Hsieh, Paul Hsieh, Matt Arnold, and me.

I’ve decided that the issue is important enough to merit the release of additional video from that event. Here Mark Braunlich argues that the campaign laws chill the speech of new activists and small groups. He did praise Gessler for trying to make the related rules as comprehensible as possible.

Common Cause Joins Pro-Censorship Rally

The bigotry follows a common pattern: dehumanize your opponents, then strip them of their rights.

Tomorrow, various leftist organizations will rally in Denver to advocate censorship to forcibly silence select individuals, on the pretext that “corporations aren’t people.” And never mind the fact that corporations are composed of people, as are all groups.

In the good ol’ days, the left would denounce economic liberty but defend freedom of speech. Today the left’s inner contradictions have led it to endorse censorship outright (though many leftists are too cowardly to openly name their goal).

Colorado Common Cause has openly endorsed the pro-censorship rally and will participate in it. Yesterday the organization Tweeted, ”#SCOTUS got it wrong, only people are people. Join @Amend2012 to take back your democracy: twibbon.com/amend2012.”

The link Tweeted by Common Cause takes us to a web page for “Amend 2012,” which states: “Corporations Are Not People. In 2010 the U.S. Supreme Court decision Citizens United v. FEC gave corporations the same constitutional rights as everyday Americans, and said corporations could use their massive riches as free speech. Corporations have been doing just that, pouring money into our elections and drowning out the voices of real people.”

Of course, Common Cause is itself a corporation, as Colorado recordsshow. For the fiscal year ending June 30, 2011, Common Cause showed revenues of $6,318,706.

So does Common Cause think it should be censored, on the grounds that it is a corporation that “pours money” into the political process? Of course not. Because, you see, some corporations are more equal than others. The members of some groups are more equal than others. The members of some groups are “real people,” who therefore retain their First Amendment rights, while the members of others groups are apparently subhumans, undeserving of the same legal protections. That is precisely the logic of Colorado Common Cause’s position.

Ironically, Colorado Common Cause and others are simultaneously advocating free speech by opposing the SOPA internet restriction bill, and advocating censorship of corporate speech. For example, in a Tweet today Common Cause promoted a “Musical Attack on #SOPA & #CitizensUnited.” See also the linked video.

And yet the voices against SOPA included many of America’s most prominent corporations. Wikipedia led the charge — you know, the free online encyclopedia owned by Wikimedia Foundation, Incorporated. The for-profit corporations Facebook and Google also came out strongly against SOPA. Even the Vibram shoe company came out against SOPA.

Does the American left really want to get in the businesses of imposing government censorship on corporations? As Eugene Volokh sensibly reasons: “Say that Congress concludes that it’s unfair for Google to be able to speak so broadly, in a way that ordinary Americans (including ordinary Congressmen) generally can’t. Congress therefore enacts a statute banning all corporations from spending their money — and therefore banning them from speaking — in support of or opposition to any statute. What would you say about such a statute?”

If censorship is “what democracy looks like,” then I for one will fight for the preservation of the First Amendment and our Constitutional republic.

Image: Picasa via Wikipedia

Read also: Citizens United and the Battle for Free Speech in America, by Steve Simpson

Save Internet Freedom

No, I’m not blacking out my web page today, but I certainly support those who do. As Diana Hsieh explains, bills recently considered by Congress threaten to subject the internet to pervasive government controls.

Yes, I support intellectual property rights. But the bills in question threaten intellectual property rights in the name of protecting them. Censorship is never the answer to any problem, real or imagined.

For more, see SOPAStrike.com.

True to their word, the folks at Wikipedia blacked out their site to protest the bills in question.

Campaign Finance Rules: Collected Testimony

As I’ve reviewed, Colorado’s Secretary of State Scott Gessler held a meeting December 15 to discuss his office’s rules pertaining to the campaign finance laws.

Gessler’s office has published all the written testimony submitted on the matter.

I’ve also published video of several people who, while overall supportive of Gessler’s proposed rule changes, nevertheless criticize the broader scope of campaign finance controls. Following are the remarks of Diana Hsieh, Paul Hsieh, Matt Arnold, and me.

If you want to get an idea of why I was a bit fired up, check out this video clip of State Senator John Morse:

Morse: Complying with Campaign Laws “Really Does Take a Lawyer”

On December 15, 2011, Colorado State Senator John Morse spoke about the state’s campaign finance laws at a Secretary of State hearing.

He said, “What we were selling there, if you will, was that people will comply with the law, and there won’t be many fines. I think what your experience is showing is that… turns out that complying with all this is complicated, and really does take a lawyer. But that’s the price of the transparency, to be able to have these kinds of reporting things.”

But Senator, if you have to hire a lawyer or risk hefty fines or lawsuits in order to spend resources speaking out for or against any ballot measure or candidate, that’s not free speech.

The proper term for it is censorship.

See also:
Comments Regarding the Secretary of State’s Dec. 15 Campaign Finance Rule Hearing

Reviewing CO’s Campaign Laws

Letter About Speech-Chilling Campaign Laws

Comments Regarding the Secretary of State’s Dec. 15 Campaign Finance Rule Hearing

I submitted the following comments to the Colorado Secretary of State’s office prior to a December 15 meeting regarding campaign finance rules.

Dear Secretary of State Gessler,

Thank you for holding a public hearing regarding the Secretary of State’s rules pertaining to Colorado’s campaign finance laws. Before examining some of the particular proposed rule changes, I want to briefly discuss the nature of the campaign laws and their impacts on me as a political activist.

Censorship means the use of government force to prohibit or restrict speech in any of its varied forms. A governmental agent employs direct censorship by banning a particular work or speaker, as by prohibiting the printing and distribution of a specific book or pamphlet, or by threatening a given individual with sanctions for speaking to others. Other sorts of restrictions and controls may not directly prohibit some manifestation of speech, yet, by imposing onerous burdens on the act of speaking, they constitute an indirect form of censorship. For example, if an onerous tax were placed on books or some particular book or type of book, that would constitute indirect censorship.

Colorado’s campaign finance laws constitute a form of censorship, albeit an indirect form. No, the laws do not outright ban certain types of speech (as the federal McCain-Feingold law attempted to do). Yet they burden the political activist with onerous restrictions and requirements, effectively curtailing the political speech of many individuals. The campaign laws censor political speech no less than if the government taxed individuals who spoke out many hundreds or thousands of dollars. The result is precisely the same.

Before an activist can even begin to speak out for or against any ballot measure or candidate with the intention of spending even small amounts of resources, the activist must learn the rules (broadly defined). The assorted Constitutional provisions, statutes, bureaucratic rules, and surrounding court cases constitute many scores of pages of dense legalese. Even learning whether certain forms of speech fall under these rules requires substantial effort (indeed, people may violate the rules without even knowing they exist); figuring out how to obey those rules requires far greater effort.

I myself have spent many hours reading about the rules, and yet I feel totally incapable of obeying them. To say that the rules are Byzantine frankly insults Byzantium. To invoke Churchill’s words, the campaign laws are “a riddle, wrapped in a mystery, inside an enigma.” To the average busy activist who is not prepared to spend many hours in intense academic-style study of these rules, the campaign rules are practically unintelligible.

For a small-scale project, a political activist easily could spend far more hours navigating the assorted campaign finance rules than the activist actually spends speaking out. By way of comparison, imagine if the government imposed a $40 tax on a $15 book: in both cases, the result is censorship.

True, the Secretary of State’s office holds classes to train people in how to obey the rules, a practice endorsed by Colorado Common Cause. Yet there are serious problems with this.

First, commuting to a class, sitting through the class, and then reviewing one’s notes itself imposes a severe cost in terms of time on political activism.

Second, the mere fact that citizens are asked to sit through a government-run class to retain their ability to speak on political matters itself violates free speech. In many cases, people speak out for or against particular governmental policies enacted by particular politicians or bureaucrats. Asking the citizen activist to sit through a class organized, perhaps, by the activist’s political opponents inherently clashes with that activist’s free speech rights. To illustrate the absurdity of the laws, consider that advocacy for or against candidates for Secretary of State can itself fall under the campaign rules. If an activist opposed the sitting Secretary of State and advocated the election of the opposing candidate, the sitting Secretary of State would be responsible for instructing the activist on how to speak out — and for enforcing the rules against the activist.

Third, even if the Secretary of State’s office makes a good-faith effort to instruct the citizen activist on how to obey the campaign laws, that hardly guarantees that the activist will remain free from vindictive legal actions lodged by opponents. If the Secretary of State’s office offers one interpretation of the law, a judge may offer quite another — as Matt Arnold discovered after getting sued for daring to participate in the political process.

Once the activist learns all the rules, then he or she must register with the government. That fact independently and severely violates the right of free speech. The mere fact of registering with the government to practice free speech, especially given America’s long tradition of First Amendment protections, weights heavily on many citizen activists (myself included).

Then come the reporting requirements and threats of legal suits. The activist must track in great detail contributions and expenses, meeting the complex requirements of the campaign finance laws. An activist who makes even a trivial paperwork error may be subjected to fines and lawsuits lodged by political opponents. Again this imposes a severe cost in terms of time and risk. Notably, these requirements weigh especially heavily on the small-scale, independent activist. Large groups able to hire their own accountants and lawyers can more easily comply with the requirements and absorb possible fines and legal fees.

These burdens of learning the rules, registering with the government, complying with the intricate reporting requirements, and then facing the constant threat of vindictive legal actions lodged by one’s political opponents certainly chill political speech. The number of victims of this sort of censorship can never be precisely calculated, because in many cases the victims simply shut up and say nothing, and we never know what they might have said otherwise.

Colorado’s campaign finance laws have discouraged me from speaking out in certain ways. During the last election cycle, it briefly occurred to me to make up my own flyer regarding candidates and ballot measures, and hand out copies of the flyer in my neighborhood. But, fearing the onerous burdens of the campaign laws, I quickly gave up on this idea; I did not want to become ensnared in the reporting burdens or the threats of legal actions against me by my political opponents.

I did speak out against one ballot measure in my capacity as an activist: Amendment 62. However, I agreed to do this only because Diana Hsieh, who joined me in the effort, agreed to meet all the campaign finance burdens. Absent her efforts, I would not have undertaken the task.

I am already thinking about the possibility of speaking out during the 2012 election cycle. My idea, similar to my previous idea, is to print up a flyer explaining my views on various candidates and ballot measures. But I have no idea whether this sort of speech would even fall under the campaign rules, what “magic words” I might have to avoid, or how I might possibly comply with the campaign rules to make this happen. (Moreover, I have a particular aversion to complying with intricate bureaucratic rules; for the same reason, I pay somebody else to prepare my taxes. Yet I shouldn’t have to pay somebody else to help me comply with bureaucratic rules merely to speak out on political matters.) Notably, I would meet the original $200 reporting threshold merely by printing out 2,000 flyers at the local copy shop. Thus, the fact that I would have to spend many hours investigating the campaign rules, perhaps complying with their intricate burdens, and then facing the risk of getting sued by my political opponents, may well shut me up again in that respect. And that is a violation of my First Amendment right — and it is a right, not a privilege — of free speech.

Now I wish to address some of the details of the Secretary of State’s proposed rule changes. On the whole, I believe the Secretary of State is making a good-faith effort to make the campaign rules as objective, fair, and manageable as possible given the constraints of the overall system. For this Secretary of State Scott Gessler and the employees of his office are to be applauded. (I have no doubt that the enemies of free speech on the left will continue to smear him instead, as they have done relentlessly now for many months.)

The general point is that the state’s constitution requires — not permits, but requires — the Secretary of State to make rules “necessary to administer and enforce” the campaign laws. (Of course, the fact that the Secretary of State needs to issue such rules only further illustrates the inherent ambiguousness of the constitutional provisions on this matter.)

The Reporting Threshold

A December 9 document from the Secretary of State’s Office (“Revised Draft of Proposed Rules Office of the Colorado Secretary of State: Rules Concerning Campaign and Political Finance 8 CCR 1505-6″) proposes (Rule 4): “An issue committee shall not be subject to any of the requirements of Article XXVIII or Article 45 of Title 1, C.R.S., until the issue committee has accepted $5,000 or more in contributions or made expenditures of $5,000 or more during an election cycle.”

This proposed rule is an eminently reasonable response to a federal court ruling on the matter (despite a subsequent nonresponsive and frankly politicized lower court ruling to the contrary).

Article XXVIII, Section 2(10)(a)(II) states that an issue committee is a group that “has accepted or made contributions or expenditures in excess of two hundred dollars to support or oppose any ballot issue or ballot question.”

However, in the case Sampson v. Buescher (December 9, 2010), the Tenth Circuit Court of Appeals reasonably ruled that the $200 threshold is unconstitutionally low based on the First Amendment protections of the federal Constitution. (As modern courts are wont to do, the court issued an unfortunately limited ruling that left in place most of the serious free-speech violations of Colorado’s campaign finance rules.)

The Court noted in footnote 5 that the group in question lodged “$782.02 in inkind contributions reported on July 13, 2006.” Moreover, “cash contributions (made between September 2006 and April 2007) totaled $1,426, of which $1,178.82 went for attorney fees and $247.18 remained in the committee bank account.”

The Court concluded, “[T]he financial burden of state regulation on Plaintiffs’ freedom of association approaches or exceeds the value of their financial contributions to their political effort; and the governmental interest in imposing those regulations is minimal, if not nonexistent, in light of the small size of the contributions. We therefore hold that it was unconstitutional to impose that burden on Plaintiffs. We do not attempt to draw a bright line below which a ballot-issue committee cannot be required to report contributions and expenditures. … We say only that Plaintiffs’ contributions and expenditures are well below the line.”

In other words, the amount of $2,208.02 ($782.02 plus $1,426) is “well below the line” that would be constitutional. Thus, the Secretary of State, to meet his legal obligations, must set a threshold “well above” that amount. The amount of $5,000 fits the bill adequately.

Note that, absent a clear rule from the Secretary of State’s office, activists are left to twist in the political winds. If they spend the wrong amount without reporting, as determined by their political opponents, then they will get sued. The Secretary of State’s office is attempting to prevent precisely the sort of after-the-fact rule-making that constitutes a serious violation of people’s basic rights.

Aggregate Contributions of $20

The Secretary of State’s proposed tenth rule states, “If a contributer gives $20 or more in the aggregate during the reporting period, the contributer must be listed individually on the report, regardless of the amount of each contribution.” The document cites statute 1-45-108(1), which states, “All candidate committees, political committees, issue committees, small donor committees, and political parties shall report to the appropriate officer their contributions received, including the name and address of each person who has contributed twenty dollars or more…” By my reading, the Secretary of State’s proposed rule follows the cited statute. Unfortunately, this creates an important problem: if somebody donates a few dollars to a cause, then forgets and later donates a few more dollars, the total of which surpasses $20, the issue committee could be in violation of the law without even knowing it.

Other Proposed Rules

In the proposed definitions, the Secretary of State seeks to tighten up the meaning of “electioneering communication,” citing the case Federal Election Commission v. Wisconsin Right to Life, Inc. Imposing onerous burdens on the mere mention of a candidate severely violates the right of free speech. The Secretary of State seeks to restrict to “electioneering communications” speech that “is subject to no reasonable interpretation other than an appeal to vote for or against a specific candidate.” That is, unfortunately, still far too vague, but it may be the best the Secretary of State can accomplish within the given framework.

Regarding penalties and wavers, I support the Secretary of State’s efforts to make the waiver rules more objective and to set reasonable limits on the accrual of fines.

Regarding privacy for contributers, I support the Secretary of State’s efforts to allow people who fear for their safety to withhold their personal information from the public record. It’s absolutely ludicrous to publish the names and home addresses of those who contribute funds regarding controversial issues such as abortion, immigration, firearms, gay marriage, etc.

Summary: Colorado’s campaign finance laws inherently and severely violate the right of free speech of citizen activists. While the Secretary of State must issue rules within that framework (taking into account the relevant court rulings), wherever possible the Secretary of State should issue rules that best comport with the First Amendment and the right of free speech. The Secretary of State’s proposed rules do just that.

Gessler Emerges as the Free Speech Secretary of State

The following article by Linn and Ari Armstrong originally was published December 9 by Grand Junction Free Press.

True, Secretary of State Scott Gessler has made some public-relations missteps, as when he attended a Larimer County Republican fundraiser in September to cover campaign-finance fines that Gessler’s office oversaw. On the whole, though, Gessler deserves praise for having the guts to stand up and take heat for what he believes in: the principles of free speech. Indeed, Gessler deserves the national title as the Free Speech Secretary of State.

Gessler has done the best he can to make sense of the contradictory, often-ambiguous mish-mash of Colorado’s campaign finance laws and court rulings about them. His job in that regard is not an easy one: the voter-approved section in Colorado’s Constitution gives him one set of directives, while judges give him another, and he must craft the rules guiding the process.

The problems begin with the campaign-finance laws, which inherently violate rights of free speech. As we wrote back in May, those laws specify that, to speak out for or against any ballot measure while spending over $200, you “must first register with the proper authorities, then report to those authorities the names and addresses of every significant donor to your cause, as well as all of your significant expenses… on penalty of daily fines, and in accordance with a hundred pages of dense legalese.” Obviously those laws undermine free speech and discourage civic participation.

The courts should throw out the entire mess on First Amendment grounds. Instead, last year the 10th Circuit Court ruled that the $200 “trigger” for reporting is unreasonably low. But the court declined to specify a more reasonable amount, leaving Gessler to implement the rules without clear guidance. Gessler reasonably drafted rules setting the “trigger” at $5,000, meaning if you don’t spend that much, you don’t have to file and comply with the paperwork requirements. Gessler did the best he could to protect free speech within the constraints of the campaign laws and the court decision.

But on November 17, Denver District Court Judge Bruce Jones threw outthe $5,000 trigger, recognizing Gessler’s “conundrum” but again declining to offer any clear guidance.

Thankfully, Gessler announced he’d appeal Jones’s ruling. In a news release Gessler described the problem precisely: “Under Judge Jones’ ruling, we have one threshold for $200 and another threshold for ‘some other amount.’ We want to encourage participation in our political process but the ruling today only further confuses an already complex process.” In other words, without a clear “trigger” for reporting, activists have no idea when they have to file or whether they’ll get sued for not filing. Such ambiguity leads to after-the-fact rulings that violate citizens’ rights and undermine the rule of just law.

In a December 15 meeting, Gessler will reassert the need for the $5,000 “trigger” and offer numerous other rule changes as well. The Denver Postsummarized two other major proposed rule changes: limit to 180 the number of days the $50 per day fine accrues, and confirm that groups must “expressly advocate” a candidate or measure in order to fall under the campaign laws. (Rich Coolidge, spokesperson for Gessler’s office, confirmed that those three rule changes will be on the table; those wanting more detail can find the 58-page document on the Secretary of State’s web page.)

Regarding the fine limit, it’s just not fair for hostile, political attack groups to be able to sue somebody long after the fact and keep racking up daily fines.

As for the language about “express advocacy,” our ability to speak out on candidates and issues goes to the heart of the First Amendment. The legal issue is that some groups run ads praising or castigating some candidate or issue without actually suggesting how people should vote. If you tell people how to vote, you use the so-called “magic words” that trigger the campaign laws. Incidentally, the Colorado Supreme Court will hear a caseabout this, though the mere fact that we’re discussing “magic words” illustrates nicely why the campaign laws by their very nature violate free speech.

Unfortunately, Gessler has been been relentlessly attacked by leftist activists who champion censorship of political speech, including Luis Toro of Colorado Ethics Watch and Jenny Flanagan and Elena Nunez of Colorado Common Cause.

The left is obsessed with the idea that, somewhere, someone may spend their own money to advocate their political beliefs. But free speech is central to our liberties, and that right is meaningless without the physical means to advocate our beliefs. Often that requires spending money. Yet many on the left would restrict our political speech in many contexts and open the door wide to more far-reaching forms of censorship.

When Flanagan debated Ari on television earlier this year and Ari brought up the First Amendment, she retorted, “That’s not part of the conversation right now.” Thankfully, Gessler is doing what he can to change that.

Linn Armstrong is a local political activist and firearms instructor with the Grand Valley Training Club. His son, Ari, edits FreeColorado.com from the Denver area.

Note: See also Diana Hsieh’s detailed summary of the proposed rule changes in a first and second post.

Reviewing CO’s Campaign Laws

Diana Hsieh and I spoke on Colorado’s campaign laws at the December 7 Liberty On the Rocks in Denver.

I addressed the general problems with those laws. I remarked, “Colorado citizens with few to no [slight] resources are being dragged into court for daring to speak their minds, for daring to be active in the political process, for daring to stand up and fight for a better country. And I think this is shameful: I think it’s shameful that Colorado citizens are being dragged into court for daring to exercise their right of free speech.”

Diana reviewed her experiences complying with the speech-chilling laws. Then she explains Secretary of State Scott Gessler’s proposed rule changes and offers support for them.

Occupy Denver and Free Speech

At this moment I am watching live camera feeds from 9News and the Denver Post of the “Occupy Denver” protests. Earlier today, Governor John Hickenlooper, Denver Mayor Michael Hancock, and Colorado Attorney General John Suthers held a media conference pointing out that it’s illegal to camp on government property in the city at night. But the “occupiers” said they aren’t leaving. Yet, at 11:17 p.m., nothing much seems to be happening. (The idea is that the “occupiers” must clear out their tents between the hours of 11 and 5.)

[Update (11:58 pm): The state capitol property runs right along city park property, so it's unclear to me where the tents are actually located. The Denver Post just reported that "Suthers read the Colorado law that forbids camping on state Capitol grounds." So apparently at least some of the tents are on capitol grounds. Whether the relevant government is the city or the state, the reasoning here applies equally. I have lightly edited some of my earlier text in this light.]

The interesting discussion is over the First Amendment and free speech.

9News reporter just asked somebody whether “our First Amendment rights override” the laws against camping on government property. The ACLU’s Mark Silverstein told 9News that pitching tents is “symbolic speech that’s protected by the First Amendment.”

But such comments largely miss the point of the First Amendment. No doubt pitching a tent can be “symbolic speech.” But you don’t have the right to pitch your tent in my front yard in order to express yourself. The right of free speech must be rooted in property rights.

The complication arises on government property, tax funded property. People have the right to protest on government property, but they do not have the right to impede other people’s reasonable use of that property, as by blocking traffic. Pitching tents in these city parks in fact poses risks to safety and health (where are these people going to the bathroom?), and it’s entirely reasonable to outlaw camping on such property. Essentially what the “occupiers” are doing is asking other regional taxpayers to clean up their mess and property damage.

Recently my wife and I went to a state park to camp. We paid $70 for an annual state parks pass and $22 per night to camp at the facilities. Should I have just been able to say I was “occupying” the camp space and exercising my “symbolic speech” by pitching my tent so as to avoid paying the fee? Obviously not.

The problem is that governments can potentially abuse their management of tax-funded property to prevent reasonable protests. If a government simply disallowed a group from holding a protest, then that might justify civil disobedience. But I have never heard of anything like that in Colorado.

Of course, ultimately the problems of government property can be mitigated simply by limiting the amount of government property. For example, in New York the “occupiers” have taken over a private park; in that case, the owners of the park properly set the policy.

Yes, the “occupiers” have the right to protest. Hell, I even agree with some of what they have to say. Just a while ago the group in Denver was chanting, “Banks got bailed out. We got sold out.” That’s exactly right. But let’s not hear any more nonsense about “free” camping in government parks somehow bearing First Amendment protection. Our Bill of Rights deserves more serious treatment than that.

See also:

Occupy Wall Street: Bob Glass Reports

How to Actually “Separate Government from the Corporations” (The Objective Standard)

Left and Right Assault Free Speech

The following article by Linn and Ari Armstrong originally was published July 22, 2011, by Grand Junction Free Press.

Within a week of Independence Day, representatives of the left and right started lining up to assault free speech and advocate censorship.

On July 7 Michele Bachmann, a Republican candidate for president, signed a pledge from the Family Leader to “protect” women from “all forms of pornography.” The next day, guests on Thom Hartmann’s ”progressive” radio show called for a Constitutional amendment to censor political speech. God help us if they ever reach a “bipartisan” agreement to gut the First Amendment.

We’ll start with Bachmann. The pledge she signed neglects to specify what should be done about pornography. But this is a pledge for candidates, so we can sensibly conclude the intent is to pass laws limiting or outlawing pornography. Moreover, the pledge equates pornography with slavery and the murder of children, and obviously those latter two things should be outlawed. (The pledge also suggests abortion should be banned, but that’s the topic for another article.)

The first problem is who gets to decide which naked pictures constitute high art and which get banned as pornographic. For example, R. Crum’s illustrated Genesis features a nude Adam and Eve, both looking quite healthy (and neither wearing a fig leaf). Should we ban that?

Pornography can be written text as well as images. Chapter 19 of Genesis features Lot’s daughters getting him drunk and then having sex with him. The daughters get pregnant, having sons who go on to found the Moabites and Ammonites.

So who in Bachmann’s world gets to decide which sexually explicit images and texts rise to the sacred and which deserve criminal prosecution? What about Playboy? What about romance novels? What about Michelangelo’s sculpture of David?

Obviously the government has a legitimate interest in protecting the rights of children, who have not reached the age of consent. But consenting adults properly have the right to engage in whatever behavior they want, free from political interference. Anything short of that standard leads logically to the incremental destruction of individual rights.

While Bachmann deserves the harshest criticism for her frankly idiotic move to sign the pledge, the left’s censors deserve even harsher condemnation. They should know better. There was a time in this country when the left actually took free speech seriously. Not anymore.

Hartmann’s guests made two recommendations. First, amend the U.S. Constitution such that only registered voters may donate funds to a campaign or issue group, and regional politicians may limit the amount donated. Second, finance all campaigns for public office with tax dollars. Both these measures blatantly violate freedom of speech.

The purpose of the proposed amendment is to prevent corporations and other groups from funding campaigns. But who gets to decide which people are qualified voters? Some people don’t register to vote for ideological reasons; do they lose their rights of speech? Apparently seventeen-year-olds lose their rights.

Even if the amendment were restricted to individuals, rather than qualified voters, it still would violate people’s rights. True, as leftists monotonously drone, corporations aren’t people. But apparently leftists have neglected to notice that corporations are comprised of people. So are unions. So are educational organizations.

Individuals have the right of free speech, and they have the right to join with others to speak. People don’t lose their rights merely by collaborating with others.

Limiting the amount people can give to political causes also violates their rights of free speech as well as property. People have the right to support the speech of their choice, whether by lending a printing press, handing out flyers, or donating money to help somebody else speak. Limiting people’s ability to support the speech of their choice constitutes censorship.

What about “publicly” funded campaigns? The freedom of speech entails the right not to speak. If somebody forces you to stand up and recite the Pledge of Allegiance, or the Communist Manifesto, or whatever, that violates your rights of free speech. Likewise, forcing people to financially support speech against their will violates their freedom of speech.

An important practical problem is who gets to decide which candidates “deserve” tax dollars. Can just any kook declare to be a candidate and go on the campaign dole? Obviously that wouldn’t work, so somebody would be in charge of blessing the “right” candidates with political welfare.

Notice that both Bachmann and Hartmann’s guests offer their pretexts for imposing censorship. The religious right often claims that pornography promotes sexual promiscuity and so on. The left claims that money in politics corrupts it.

Censors of all stripes unite in their belief that individuals are just too stupid to make their own decisions, and therefore they need benevolent politicians and bureaucrats to do their thinking for them. No presumption could be more deadly to a free republic.

Letter About Speech-Chilling Campaign Laws

The June 16 Denver Post published my letter about Colorado’s speech-chilling campaign laws. The same page includes the contrary view of Jenny Flanagan from Colorado Common Cause.

Re: “Minor players, major burden,” June 15 editorial.

Thank you for your editorial supporting the secretary of state’s rule exempting small issue groups from complying with onerous campaign laws. As the 10th Circuit Court of Appeals found, and as I have personally experienced, the previous rules violate people’s rights of free speech and association.

Under those rules, to speak out for or against any ballot measure spending more than $200, one must first register with the state, learn 100 pages of dense legalese, comply with difficult reporting requirements, and then still risk getting sued by the likes of Colorado Ethics Watch. This chills speech.

Moreover, the right of free speech entails the right to speak anonymously — a right many of our nation’s Founders invoked in debating the Constitution. Consider such heated issues as abortion, immigration, gay rights, and guns. Voters have every right to ask for disclosure, but not to force it, and to vote accordingly.

Ari Armstrong, Westminster

Unfortunately, two anti-free speech groups, Colorado Common Cause and Colorado Ethics Watch, have sued Gessler over the rule change. Read the reports from the Denver Post and Colorado Independent.

In related news, see Nat Hentoff’s excellent remarks about anonymous speech.

Read more about this issue.

Making the First Amendment Part of the Conversation

That Colorado’s campaign laws chill free speech when it comes to speaking out for or against ballot measures is now established, incontestable fact. The reams of dense legalize, the onerous reporting requirements, and the risk of getting sued simply keep many citizen activists from getting involved in funded campaigns. On May 11, I taped an edition of Jon Caldara’s “Devil’s Advocate” on Channel 12 to discuss these issues.

I draw your attention to the exchange starting at marker 8:39:

Jenny Flanagan of Colorado Common Cause: “The reality is, the Colorado Constitution requires disclosure. That’s what we have on the books.”

Me: “The reality is we have a First Amendment.”

Flanagan: “That’s the reality. That issue [the Colorado laws' compatibility with the First Amendment] has not been challenged, and that’s not part of the conversation right now.”

It’s a pretty sad day when the First Amendment is not part of the conversation when it comes to political speech. And that is precisely the problem I seek to redress.

Note: On May 13, two days after the show taped (but before it aired), the Secretary of State’s office announced the rule change raising the “trigger” level for issue-group reporting from $200 to $5,000.

See also my previous links on the matter:

Public’s Alleged “Right to Know” Should Not Trump Free Speech

Colorado’s Campaign Laws Throw Common Sense Out the Window

Arnold Testifies on Campaign Laws

CO Campaign Laws Chill Speech (Videos)

Why Colorado’s Campaign Laws Constitute Censorship

SOS Looks to Mitigate Burden of Campaign Censorship Laws

Public’s Alleged “Right to Know” Should Not Trump Free Speech

The Colorado Springs Gazette published my latest op-ed on Colorado’s campaign laws. In this piece, I address the question of whether the public’s alleged “right to know” the financial details of political advocacy can justify the violation of the individual right of free speech. Obviously I argue it cannot.

Colorado’s campaign laws violate free speech in two different ways, I review in the piece. First, they force the citizen activist to jump through bureaucratic hoops, and suffer possible law suits, in order to run a funded campaign for or against any ballot measure. Second, the campaign laws outlaw anonymous speech regarding such campaigns.

I therefore conclude, “The fact that the public’s alleged ‘right to know’ clashes with the fundamental human right of free speech indicates that there simply is no public ‘right to know’ regarding details about private citizens. It is only a legal entitlement masquerading as a right.” People do have the right to disclose their financial details if they wish and to evaluate campaigns based on disclosures.

On May 13, the Secretary of State’s office announced that it had adopted the rule change discussed in the piece, raising the “trigger” amount for issue-group reporting from $200 to $5,000.

Please read the entire piece for details. See also the Grand Junction Free Press article by my dad and me that examines the same issue from another angle.

March 24, 2014 Update: I’ve added the complete text of the Gazette op-ed below.

Public’s ‘right to know’ can clash with right to free speech
Ari Armstrong • Updated: May 13, 2011 at 12:00 am • Published: May 13, 2011

According to the principle of free speech embodied in the First Amendment, people have the right to speak their minds on the issues important to them, free from government interference. They have the right to finance the propagation of their beliefs and to coordinate with others to speak.

According to Jenny Flanagan of Colorado Common Cause, the public has a “right to know” the financial details of those who fight funded campaigns for or against ballot measures. However, the laws required to establish this alleged public “right” necessarily violate the free speech rights of individuals.

The state’s campaign laws, approved by voters in 2002 and enshrined in Article XXVIII of Colorado’s Constitution, impose burdensome reporting requirements that especially harm small citizen groups.

If you wish to devote even a small budget to speaking out on a ballot measure, you must register with the government and report your finances as an “issue committee.”

To do this, you must work your way through 100 pages of dense legalese compiled by the Secretary of State. Then, you must obey complex and time-consuming reporting requirements, tracking in exhaustive detail your donors and expenses. If you make a minor paperwork error, you face fines of $50 per day per violation, though you might be able to beg the Secretary of State’s office to waive your fines.

Even if you get through all that, an attack lawyer can still sue you under the laws for any error, however trivial, real or concocted. Just ask Matt Arnold of Clear the Bench, who was sued under the campaign laws even after he followed the advice of the (former) Secretary of State. These burdens especially discourage small citizen groups from getting involved in the political process.

Thankfully, following a court decision last November siding with a small citizen group near Parker, current Secretary of State Scott Gessler proposed a rule raising the “trigger” amount for reporting from $200 to $5,000. At least the change would free smaller groups from the onerous burdens — though not necessarily from the threat of harassing lawsuits.

The campaign laws also outlaw anonymous speech pertaining to funded efforts for or against any ballot measure. Yet the right of free speech entails the right to speak anonymously.

Anonymous speech enjoys a long and noble tradition in the United States. The Federalist Papers, the most important documents defending the Constitution, originally were published anonymously. So was Thomas Paine’s Common Sense.

A person might wish to support a cause anonymously to avoid possible legal, political, or criminal retribution. Issues involving abortion, guns, gay marriage, and immigration often provoke heated passions and sometimes worse. Yet Colorado’s campaign laws can require financial supporters of ballot campaigns to report their personal addresses as well as the addresses of their employers.

An anonymous supporter might also simply wish to encourage debate about the issues rather than his personality. As John Adams wrote, regardless of an anonymous speaker’s motives, “so far as the truth of facts and the weight of argument are in his favor, he ought to be duly regarded.”

A person has the right to choose how to speak, as well as what to speak about. Granting the public a “right to know” the financial details in question grants to some the ability to use government force to stop others from speaking in politically disapproved ways.

The fact that the public’s alleged “right to know” clashes with the fundamental human right of free speech indicates that there simply is no public “right to know” regarding details about private citizens. It is only a legal entitlement masquerading as a right.

People do have every right to ignore messages they distrust. They can vote against a measure whose backers do not disclose their donors.

Opponents can raise questions about campaigns with secret donors. Last year, the secrecy surrounding measures 60, 61, and 101 made many voters suspicious. Moreover, donors themselves can agree to give only to causes that voluntarily disclose.

People have a right to disclose their own financial contributions to political causes, if they wish. And voters have a right to request such disclosures. But such disclosures cannot be mandated by law without infringing others’ rights of free speech, and that’s why Colorado’s campaign finance laws should be repealed.

Ari Armstrong has written about a wide range of issues, including education, taxes, self-defense, and drug policy. His website is http://www.ariarmstrong.com.