Campaign finance regulation has lost all sense of reality. The U.S. Supreme Court case discussed in this paper's editorial on Sept. 12 -Citizens United vs. Federal Elections Commission - and the case in June when a federal court struck down all of Florida's electioneering communications regulations -Broward Coalition vs. Browning - demonstrate just how nonsensical things have become. The real victim in all of this is you, the public, as the average voter drowns in a sea of high-browed ideological rancor.
Citizens Unitedconcerns a federal government ban on political speech -in this case a movie about Hillary Clinton during the 2008 election campaign. That's right: There is actually a debate about whether the government can ban a movie (this ban would also apply to books!) that focuses on a candidate for this country's highest office. And what justifies the government's wielding the iron fist? Well, some of the money used to fund the movie came from corporations, and corporate money might somehow corrupt the squeaky-clean political process.
On the other hand, Broward Coalition turned this state into the Wild West of campaign finance. We now operate under a ban of a different sort: The state cannot require electioneering communications organizations to report and disclose their involvement in campaign advocacy. So these groups are free to flood campaigns with electioneering communications without disclosing who is behind the communications or where the money came from to pay for the communications. The voter can only scratch her head in wonder on the way to the polls.
Wouldn't the better solution be a balance that allows robust political speech and provides reporting and disclosure of the sources of money used to influence an election?
Unfortunately, well-financed groups on the extremes of the ideological spectrum are driving this debate off a cliff. Some of these groups believe that the First Amendment prohibits all campaign finance regulation. Other groups believe that the government can enact almost any regulation it wants to prevent even the appearance of corruption in the political process. Courts and politicians, regrettably, have jumped into the mire to stake out positions on either side of these ideological battles rather than providing the needed balance.
As is usually the case, neither of the extremes of this issue is best. It is wrong to read the First Amendment as permitting any ban on political speech. It is equally as wrong to read it as an absolute prohibition on all campaign finance reporting and disclosure requirements. The special interest groups seem to believe that it has to be one way or the other. This is just not so.
Without question, reporting and disclosure requirements are burdens on speech that should be viewed with skepticism. Still, reasonable reporting and disclosure requirements make for an informed electorate and are very different from government bans on speech. It is no small thing for the public to be as informed as possible when voting on those who will hold great sway over their lives.
Our state legislators will be going back to the drawing board soon to enact new electioneering communication laws. They will have to work diligently to draft laws that respect the First Amendment and provide the public with essential information, as the federal courts have provided unclear guidance in this area. Whenever the new laws are challenged, and they will be challenged, courts should act as a check to make sure these laws do not infringe too much on speech while understanding the First Amendment allows the public to have valuable information on the political process.
In other words, no bans on speech; just show us the money.
C.B. Upton is a Tampa attorney and former deputy solicitor general for the state of Florida, where his work focused on appellate and trial litigation, including numerous election law cases.