Political Speech Not as Free as You Think

Campaign finance laws are necessary to keep really rich people from “buying” candidates and controlling our government, right? And any limitations on free speech that might be necessary are just collateral damage — unfortunate but unavoidable, aren’t they? At least that is the prevailing view of the reform community and probably the general public. However, these laws regulate and restrict political speech, political association, and the ability to lobby the government on important issues and have a reach way beyond what most of us realize.


Ordinary Americans justifiably think they can express their political opinions without concern over government regulations or intrusive investigations into their activity by a federal law enforcement agency. We do have the First Amendment, after all. But the overreach of these laws is illustrated by some cases pursued by the Federal Election Commission, which enforces the campaign laws. In the FEC, you have six commissioners and a staff of 350 career civil servants making decisions on fundamental constitutional rights, deciding what political speech and activity is allowed — political speech and activity that is engaged in not just by candidates running for office, but also by citizens who have associated together to represent their interests and even by individual Americans.

For example, in 2000, FEC investigators descended on Muleshoe, Texas, a small farming town of just under 5,000 inhabitants west of Lubbock. They were looking into a complaint filed against local citizens who made the horrible mistake of putting up competing signs alternately supporting Al Gore or George Bush. This political rivalry started when Harvey Bass, the owner of the local furniture store, took an empty refrigerator box, painted “Save Our Nation, Vote Democrat, Al Gore for President” on the side, and placed the box on the porch of his store.


Two other local citizens, Bill Liles and Mark Morton, got tired of looking at this sign. With the help of some of their friends, they had a bigger sign painted that read, in part, “Vote for George W. Bush for President … Not Al Gore Socialism.” They hung it on a borrowed cotton trailer and parked it across the street so that Bass “would have to look at it every time he walked out the front door of his business.”

After subjecting Liles, Morton, and two other locals to an extensive investigation, the lawyers for the FEC found that they had violated federal law because their homemade sign did not have a disclaimer. In other words, it did not say who had paid for the sign and whether or not it was approved by the candidate, even though everyone in this very small town apparently knew who was responsible. The political competition was a general topic of conversation at the Spudnut Shop on Main Street and the Dinner Bell Café on Highway 84. The FEC’s general counsel recommended sending an admonishment letter — he could just as easily have recommended a civil penalty — but fortunately wisdom prevailed amongst the commissioners and they voted simply to close the file without taking any further action.

If you think about what happened here, you begin to understand the shock and trauma these local citizens must have undergone. They were engaging in the kind of spontaneous local political activity that is a sign of a healthy democratic system and one that we should encourage. Yet they were subjected to investigation by a federal law enforcement agency and could have been forced to pay a civil penalty for their behavior. The admonishment letter would be a federal law enforcement agency’s statement that these ordinary citizens had violated federal law, not something most people take lightly. Even if you think that disclaimers in political advertising are a good idea, the fact that the statute contains no minimum threshold of activity for its application leaves individual citizens who engage in political speech at the mercy of the FEC.


Besides the disclaimer problem, if you decide to put a homemade political sign in your front yard or take out an advertisement in your local neighborhood newspaper expressing your belief that John McCain should be elected president, you’d better not spend more than $250. If you do, you are required by federal law to register with the FEC and report your independent political expenditures. Think it won’t happen?

You might want to talk to Kirk Shelmerdine, former crew chief for Dale Earnhardt, who races in NASCAR as a field-filler. In 2004 he couldn’t sell advertising on one panel of his car, so he committed the terrible federal crime of putting a Bush/Cheney decal on it. Horror of horrors — he did not report the “value” of that decal to the FEC, thus violating the independent expenditure reporting requirement. After an extensive investigation, the FEC got into a convoluted internal argument about what the value of that decal placement was, i.e., how much would Mr. Shelmerdine have to pay himself to purchase the unsold advertising space on his own car and how much was that worth in the various races he participated in.

In a four-to-one vote — I cast the dissenting vote — the commission decided to send Shelmerdine a letter of admonishment that he had violated federal law for not reporting putting a decal on his own car. No telling how much he spent in attorneys’ fees — and his own time — in responding to this silly investigation.


Reformers argue that these rules and others are needed to prevent “corruption” in our political process. It is absurd to contend that a decal on a racing car or a homemade political sign has the potential to “corrupt” a federal candidate or create the “appearance of corruption” if it went unreported to the FEC. Yet there are all sorts of independent political activities by ordinary citizens — people who have no connection with candidates or political campaigns — that are regulated and restricted by federal law. These two cases illustrate the intrusiveness and overreach of the federal campaign finance law into the lives of ordinary Americans.

Don’t be surprised if it gets even worse in the future.



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