A dangerous campaign loophole, or healthy free speech?

These days we often see political commercials that say something like:

"Did you know Sen. John Smith is an enemy of puppies and apple pie? Sen. Smith has voted 26 times against pro-puppy and pro-pie legislation.

"Call Sen. Smith and send him a message. Tell him to change his ways. Paid for by the Puppy and Pie Committee of Florida."

Just jokin' about the puppies and pie, of course. The real issue might be insurance, taxes or something else that somebody wants us to get riled up about.

These ads often are produced by a type of outfit called an "electioneering communications organization." They're called ECOs for short.

Unlike a political party, a candidate's campaign or a political action committee, ECOs don't directly urge folks to vote one way or another. They just put out a "message."

But change is coming. A federal judge has thrown out Florida's laws that regulated ECOs. And Gov. Charlie Crist's administration has just decided not to appeal.

That means ECOs — there were 105 registered in Florida before the ruling — will be unregulated by the state in the coming election cycle. We likely are in for an increase in this kind of politics.

And since ECOs will no longer have to disclose their finances to the state (only to the feds, and after the election), Floridians won't know who's paying for it.

Critics warn that this is a tempting loophole. Why not shift more money into the unregulated ECOs, instead of going through all the bother of regulated accounts?

On the other hand, aren't these groups made up of Americans who have the perfect right to speak?

The Florida law that was thrown out was pretty broad. Anybody who put out election-related information to enough people — a condo association, a parents group mad at the school board — had to report to the state.

"You shouldn't have to hire a lawyer to talk about politics," says Bert Gall, a lawyer for the Virginia-based Institute for Justice who represented the groups fighting the law.

The law, Gall says, forced citizens "basically to ask the state's permission before expressing an opinion."

Now we are left with different rules for different types of groups. The state still regulates any political group that engages in "express advocacy." That means saying, "Vote for Candidate X" or "Vote Against Candidate Y."

Why is that okay to regulate? Because we have a "compelling interest" in knowing who is paying for our politicians to get elected. We can require political parties, candidates and political action committees to disclose their finances.

Here's the tricky part. What happens when an ECO's "message" is really intended to help one side get elected, or the other defeated? Suppose all those ads accusing Sen. Smith of hating puppies and pie happen to run the last few days before an election?

Not only are we going to see more ECO activity in Florida — we're going to see more challenges claiming that these messages are campaign commercials in disguise.

I would give the widest possible latitude to ECOs to operate without regulation, until it is clear they are in the game specifically to get Party A or Candidate B elected. At that point, make 'em fork over their donor list and play by normal campaign rules. This is unsatisfying and messy, but so is democracy.

A dangerous campaign loophole, or healthy free speech? 07/01/09 [Last modified: Saturday, July 4, 2009 1:41pm]

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