May 20, 201409:22 AMBlaska's Bring It!
with David Blaska
Reclaim free speech from the regulators
(page 1 of 2)
At the Newseum, Washington, D.C.
Until last week, if you’d wanted to practice free speech in Wisconsin you would have been well advised to hire a good lawyer. Not a divorce lawyer, not a tax lawyer, nor a real estate lawyer. Not a criminal lawyer — well, maybe a criminal lawyer, too. But you needed to hire a free speech lawyer. Yes, they exist and they charge upwards of $200 an hour.
Because that was the tangled rat’s nest of Wisconsin administrative law governing political speech until the May 14 decision by the U.S. Appellate Court for the 7th District swept away most of it. (Wisconsin Right to Life v. Barland.)
The court found “a dizzying array of statutes and rules, from Wisconsin’s ban on political spending by corporations to the interlocking definitions that determine state political committee status to the non-coordination oath and disclaimer requirements for independent political messages, to name just a few.”
The court was obliged to consume 88 pages to lay out its decision (“bear with us,” the court pleaded) in order to sort out the mess.
It’s not that Wisconsin regulators went hog wild; it is the nature of the beast. “Like other campaign-finance systems, Wisconsin’s is labyrinthian and difficult to decipher without a background in this area of the law.”
Suffice to say, the 7th District said:
At the low $300 statutory spending threshold (until recently, a mere $25!) ordinary citizens and interest groups are forced into the state PAC system — with all its restrictions and registration and reporting requirements — if their advocacy on public issues in the lead-up to an election also mentions a candidate. Failure to organize, register, and report as a PAC, as required by the rule, carries civil and criminal penalties. … This is a serious chill on debate about public issues.
At one point in the 88 pages, the court referenced a section of campaign law titled “Section 1uck.” (“You read that correctly!” Judge Diane Sykes interjected, writing for the court.)
To a hammer, everything is a …
Don’t blame the Government Accountability Board. Regulators regulate; that is what they do. Progressives handed them the keys.
M.D. Kittle, writing for Wisconsin Reporter, references Benjamin Barr, a Washington, D.C.-area election lawyer who has worked on a variety of election law cases, to say that Wisconsin:
“had an unaccountable bureaucracy in the Government Accountability Board cobbling together a hodgepodge of regulations and interpretations about what kind of speech they were going to regulate and how broad those regulations were going to be.”
Vague laws interpreted by bitter bureaucrats, perhaps the kind upset by Gov. Scott Walker’s reforms of public-sector collective bargaining, can lead to “predawn raids on people, allowing petty bureaucrats and bad government actors to decide who the enemies are,” Barr said. …
Barr said the Legislature has given the GAB too much power.
“The urge is never ask the barber if you need a haircut,” he said. “Campaign zealots … believe they’re doing the Lord’s work. That’s why you have to rein them in … You’ve got to shackle these people, otherwise the trend time and time again is that they will go after innocent citizens and damage the First Amendment.”
Bring It’s Bottom Line: The appellate court implored the Legislature to rewrite Wisconsin campaign law. Here is what it needs to do: reduce the Government Accountability Board to the sole task of overseeing elections, maybe ethics and possibly lobbyists (it’s own free speech issue). But for God’s sake, take them out of the political speech business. Zero out all references to political campaigns.
Because attempting to separate issue advocacy groups from express advocacy organizations (e.g., Vote for Jones) from “organizations not engaged in express advocacy as their major purpose” is like separating the fly spots from the pepper. It’s certainly not required by the Constitution. Regulation’s biggest advocates are the socialists (i.e., Tammy Baldwin, John Nichols, Ed Garvey, Mike McCabe, et al.)
Trust the people to sift and winnow for themselves without bureaucrats regulating, restricting, rationing, and redistributing speech “for their own good.”