Florida speech restrictions get slapped -- a bit

In my "so what?" column about Barack Obama's untraceable donations, I quoted former FEC chairman Bradley Smith to the effect that , "Campaign finance reform is creating an intrusive regulatory regime that’s steadily eroding Americans’ political freedoms. Making matters worse, it does little or nothing to combat corruption."

Steadily eroding Americans' political freedom? How?

Well, a court decision handed down in Florida yesterday offers a little window into the restrictive nature of these laws. Summarizing the effects of a state law on the way to suspending the enforcement of that law, United States District Judge Stephan P. Mickle writes (PDF):

None of the above-mentioned publications contain express advocacy (that is, phrases such as “vote for” or “vote against”), which is regulated by Florida’s laws concerning political committees. But because the publications are “electioneering communications,” Plaintiff must first register with the state and comply with rules that are nearly identical to those that political committees must follow; failing to do so will subject them to fines and even criminal prosecution.

What does that all mean? Under the law in Florida, a group that makes an "electioneering communication" must register as an “electioneering communications organization.”

Under Florida law, an “electioneering communication” includes “a paid expression in any communications media” other than the spoken word in direct conversation that “[r]efers to or depicts a clearly identified candidate for office or contains a clear reference indicating that an issue is to be voted on at an election, without expressly advocating the election or defeat of a candidate or the passage or defeat of an issue.”

There are certain narrow exceptions to the rule, including a requirement that to be defined as an "electioneering communication," a message must be intended to reach 1,000 or more people. Publishing on a Website certainly qualifies.

So, if you and your group want to post political information on your Website, you have to register as an ECO. And then, "[e]lectioneering communications organizations are 'required to register with and report expenditures and contributions . . . to the Division of Elections in the same manner, at the same time, and subject to the same penalties as a political committee supporting or opposing an issue or a legislative candidate." Requirements include:

• Registering with the government within 24 hours of its organization or receiving information that causes it to anticipate receiving or expending funds for an electioneering communication, Fla. Stat. § 106.03(1)(b)
• Appointing a campaign treasurer (or custodian of the books), § 106.03(2)(d)
• Designating a depository, § 106.03(2)(k)
• Making regular reports, § 106.07(1)
• Recording expenditures, § 106.07(4)(a)
• Disclosing all donors—even those who never intended their gift to go towards political speech, § 106.07(4)(a)1 and Gall Decl., Ex. A at 3
• Restricting expenditures and contributions, including not spending money raised in the five days before the election, refusing contributions by 527s or 501(c)(4)s that are not—themselves—registered, and refusing all cash contributions over $50, § 106.08(4)(b), § 106.08(5)(d), & § 106.09
• Including a prominent “disclaimer” on each communication that reads “Paid electioneering communication paid for by (Name and address of person paying for communication).” § 106.1439
• Allowing random audits by the government, § 106.22(10).

This gets a little complicated -- so complicated, that plenty of organizations big and small found it easier to say nothing than to risk fines and prison. And, ultimately, they found it better to sue than to say nothing.

What sort of organizations?

The suit against the law was brought by the National Taxpayers Union, the University of Florida College Libertarians, and the the Broward Coalition of Condominiums, Homeowners Associations, and Community Organizations.

That's right, a college political club, among other groups, was expected to abide by the above rules before posting information on its Website or sending out mailings. Do you see the problem?

Fortunately, Judge Mickle ruled that the law in question is overbroad, excessively vague, and reaches beyond the cope of permissible regulations on "express advocacy" -- calls to vote for or against something or someone.

But that still leaves the requirements above in place for organizations that do want to directly address candidates and issues. To engage in political speech, they must still navigate through a legal minefield, with a blast of fines and potential imprisonment as the penalty for a misstep.

Still curious? John Stossel did a nice roundup on the damage to free speech done by campaign finance restrictions.

Oh, and don't forget that John McCain's name adorns the abysmal McCain-Feingold law, and that Barack Obama has also been a supporter of such restrictions (although, as his online fundraising efforts demonstrate, he doesn't take that position excessively seriously).