Florida politicians are mourning the demise of the state's electioneering communications law, which a federal court struck down in May. That law regulated any group — including churches, homeowners' associations and charities — that merely mentioned the name of a candidate or ballot issue in communications like Web sites, fliers and newsletters. Under the law, these groups had to register with the government before speaking, reveal information about their donors, and file regular reports about every dollar they spent or received. Failure to comply could have resulted in fines or even criminal prosecution.
Apparently, many in the Florida Legislature view the elimination of these draconian restrictions as a crisis. C.B. Upton, the former deputy solicitor general who helped defend the law in court, accurately summarized their complaints about the decision when he argued that it turned Florida into a "Wild West" in which the government can no longer regulate and restrict the ability of its citizens to spend money on political speech.
Make no mistake: This is a good thing. Indeed, the First Amendment — which admonishes politicians to "make no law . . . abridging the freedom of speech" — requires nothing less. In drafting it, the framers recognized that allowing politicians to regulate speech is the equivalent of allowing the fox to guard the henhouse. Just as the fox will inevitably succumb to his appetite, incumbent politicians will inevitably trample on free speech in order to satisfy their primary need: re-election.
Politicians look with both suspicion and fear at speech by independent groups that might persuade voters to vote against them. Rather than trust the public to listen to all speakers and make up their own minds, politicians of all stripes have consistently attempted to suppress political speech with which they disagree by enacting so-called "disclosure" laws.
In enacting Florida's electioneering communications law, the Legislature gained the dubious distinction of going further in this attempt than any other group of politicians had gone before. They attempted to restrict the speech of virtually every citizen, subjecting them to a Byzantine regulatory regime that, like the tax code, can only safely be navigated with the assistance of lawyers and accountants.
Whenever politicians create such a system of "disclosure," compliance becomes so expensive that all but the most well-heeled will decide that speaking up just isn't worth it. For example, a recent survey of Florida nonprofits by Duke University political scientist Michael Munger demonstrated that many of them simply do not have the time and resources to both carry out their core missions and jump through the regulatory hoops disclosure regulations place in their paths. Thus, under the electioneering communications law, their safest course was to never talk about politics, even when their interests were threatened.
In another study, University of Missouri economist Jeffrey Milyo conducted experiments in which groups of volunteers attempted to complete reports required by disclosure laws in several states. Not only did volunteers generally fail miserably in filling out the reports correctly because of their complexity, but almost 90 percent of them concluded afterward that disclosure requirements, when enforced with fines or punishment for incorrect compliance, would deter many people from engaging in independent political activity.
Lawmakers almost always argue that disclosure laws like Florida's don't stop anyone from speaking. This argument is disingenuous. To cut through all the red tape disclosure laws create, politicians have to hire armies of lawyers and accountants — an expense ordinary Floridians simply can't afford. Thus, when the Legislature enacted the electioneering communications law, its members knew that they were shutting most Floridians out of the political process.
For years, Florida politicians were happy with this outcome. So it is almost certain that they will try to recreate it when the Legislature reconvenes. Before they do, Floridians should ask them a simple question: "What part of 'make no law' don't you understand?"
Bert Gall is a senior attorney at the Institute for Justice, which successfully challenged Florida's electioneering communications law.