On Tuesday, South Carolina’s Senate Judiciary Committee held a hearing about S.255, a measure to change state campaign finance law which would crack down on individuals’ free speech to criticize politicians. The law would allow the state government to access personal information — names, addresses, occupations, and employers — of the citizens of South Carolina in order to uncover the causes they privately support.
“Veterans sacrificed for the right for all of us to stand up and speak freely about the issues we care about. But if S.255 passes, South Carolinians could be intimidated from supporting a cause or making a statement,” Nate Anderson, deputy director at Concerned Veterans for America, said in a statement on the bill. “This is America — no one should be forced to report their private information to the government and fear retaliation for their beliefs.” CVA launched an effort including phone banks, direct mail, and digital ads to fight the bill.
This bill is one of a number of disclosure laws which seek to fight “dark money” by requiring the disclosure of donors to issue-focused nonprofit groups which speak out on political issues. By regulating certain avenues of public speech, like radio, television, Internet, and other forms of advertising, governments are demanding the disclosure of people who support issue-focused organizations.
“Politicians, in concert with activist groups, desire to make it more difficult for all but the most well-connected organizations to speak about public policy,” Scott Blackburn, research fellow at the Center for Competitive Politics (CCP), told PJ Media in an email statement.
“These type of bills are often aimed at silencing speech by exposing Americans to intimidation and harassment for voicing their opinions on issues they are passionate about,” Blackburn explained. Worse, similar laws have been struck down — in South Carolina, no less — for violating the First Amendment.
He laid out the formula behind such legislation: “Politician X doesn’t like a group criticizing his votes, and telling voters about it. He tries to pass a law to undermine their efforts, so that they won’t do it again. The bill affects far more speech and activity than anyone thought. Politician X doesn’t care, so long as it is harder to criticize him.”
Specifically, S.255 regulates any ad that costs more than $500 and that airs within 45 days of an election and “promotes or supports a candidate or attacks or opposes a candidate, regardless of whether the communication expressly advocates a vote for or against a candidate.” Any person who contributes $1,000 or more to such a cause must disclose his or her “full name, mailing address, and occupation and employer.”
Blackburn argued that this definition of “election communication” is overbroad and ambiguous. He set forth this situation: The South Carolina Pet Owners Society, a 501(c)(3) charitable organization, sponsors ads (within the 45 days prior to the South Carolina state primary) naming specific state legislators who happened to be on the ballot, asking constituents to tell these legislators to support a bill to ban puppy mills.
The ad could be considered to “oppose” a candidate, but they could also be considered to “support” a candidate. In either case, donors to a pet organization defending puppies would be required to release their information to the public.
Blackburn presented two “big dangers” with bills like this. “First is that issue speech, groups telling voters about puppy mills, or gun control bills, or tax hikes is good for democracy.” These groups fulfill an important function — helping voters to hold their legislators accountable.
But “when we start regulating groups, burdening them with extra paperwork, forcing them to hire lawyers and treasurers, and opening up their donors to the risks of harassment, it is inevitable that less groups will participate in the public debate.” In other words, representative democracy takes a hit when the cost of issue advocacy goes up.
Even worse, Blackburn added, “these bills inevitably catch the ignorant, not the nefarious.” When the cost of issue advocacy increases, this change does not hit everyone equally. “The big, well-connected political players already have lawyers — they know how the game is played and will conform to the law, however stupidly it is written.”
“But time and again, we see small groups caught up unknowingly in these burdens and forced to deal with the consequences,” the CCP research fellow explained. “When that happens, groups and individuals just decide it is not worth it to send that mailer about the puppy mill ban. The law effectively silences the unconnected, passionate voices in favor of the politicians and their longtime allies” (emphasis added).
Chillingly, the state officials most supportive of S.255 are the ones whose legislative initiatives have been opposed by advocacy groups in the past. In other words, this bill is arguably a retaliation. Such measures tend not to stand up in court.
Last April, a U.S. District Court judge shot down a California regulation demanding the disclosure of donors to the conservative group Americans for Prosperity (AFP), after the group demonstrated that donors would be subject to threats and intimidation were their names made public.
America’s founders championed anonymous political speech — Alexander Hamilton, John Jay, and James Madison published The Federalist Papers anonymously. Citizens have the right to support organizations they agree with, and bills like S.255 have a chilling effect on such speech. South Carolina should not make it more difficult for citizens to speak out on issues which are close to their hearts.