Arizona dust-up demonstrates why campaign finance rules threaten free speech

September 3, 1:24 PMCivil Liberties ExaminerJ.D. Tuccille

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According to a recent legal opinion issued in Arizona, if you want to do nothing more than say nice things in public about your favorite elected officials, you have to register as a political action committee and submit to a spiderweb of red tape that's confusing even to legal experts. That interesting opinion was issued in a case involving endorsements made by the Scottsdale Area Chamber of Commerce, and it's further evidence that the always questionable effort to guarantee "clean elections" by regulating speech is nothing more than censorship intended to muzzle non-politicians.

The issue came up during last year's city council elections in the prosperous community of Beverly Hills in the desert ... err ... Scottsdale, Arizona. In the weeks leading up to the vote, the local chamber of commerce sent out mailings and bought time for television advertisements praising four candidates who "support Scottsdale's quality of life." The ads never said "vote for" these candidates or "vote against" their opponents because, under the law, that clearly qualifies as "express advocacy."  Such advocacy is a sort of speech that, First Amendment not withstanding, is so allegedly dangerous to the public that the government has determined it can be exercised only after filing the proper paperwork, and subject to close scrutiny.

Really! According to Arizona law, which is based on U.S. Supreme Court opinion:

A. For purposes of this chapter, "expressly advocates" means:

1. Conveying a communication containing a phrase such as "vote for," "elect," "re-elect," "support," "endorse," "cast your ballot for," "(name of candidate) in (year)," "(name of candidate) for (office)," "vote against," "defeat," "reject," or a campaign slogan or words that in context can have no reasonable meaning other than to advocate the election or defeat of one or more clearly identified candidates ...

If you want to engage in express advocacy, you have to register as a political action committee and ... well ... the paperwork equivalent of a colonoscopy is required. You'll find the easy-to-read details here (see Chapter 6 in particular). But if you avoid express advocacy, you can supposedly still engage in something resembling free speech.

That's what the chamber of commerce relied upon when it went forward with its efforts, and it's the section of law the chamber's attorneys cited when they responded to two inevitable complaints from candidates not lucky enough to be given attaboys in the flyers and the ads.

But  Scottsdale officials referred the complaints to a supposedly disinterested party, in the form of the Tucson city attorney. And Tucson obliged its sister city with an opinion (PDF) condemning the chamber of commerce for engaging in unregulated political speech, and calling for thousands of dollars in fines. To reach this conclusion, Tucson's Principal Assistant City Attorney, Dennis P. McLaughlin, emphasized the next paragraph of the law:

2. Making a general public communication, such as in a broadcast medium, newspaper, magazine, billboard, or direct mailer referring to one or more clearly identified candidates and targeted to the electorate of that candidate(s):

(A) That in context can have no reasonable meaning other than to advocate the election or defeat of the candidate(s), as evidenced by factors such as the presentation of the candidate(s) in a favorable or unfavorable light, the targeting, placement, or timing of the communication, or the inclusion of statements of the candidate(s) or opponents, or

(B) In the sixteen-week period immediately preceding a general election.

But, as the chamber points out in its response to the initial complaints, that wider definition only applies if speech is coordinated with the candidates in question. "The Chamber did not coordinate its educational effort with any candidate or campaign. No such coordination has been alleged." Says the next paragraph of the law:

B. A communication within the scope of subsection A, paragraph 2 shall not be considered as one that "expressly advocates" merely because it presents information about the voting record or position on a campaign issue of three or more candidates, so long as it is not made in coordination with a candidate, political party, agent of the candidate or party, or a person who is coordinating with a candidate or candidate's agent.

The Tucson opinion concedes that the expenditures were independent -- not coordinated with the candidates -- but asserts that this is a violation in itself, since independent expenditures are regulated by another section of the law. Says McLaughlin:

Because SACOC's expenditures were independent, SACOC also violated A.R.S. 16- 912(B) and (D) by failing to put the statutorily required information regarding its three largest political committee contributors on its direct mailer and television advertisement.

Is your head spinning yet? Mine is, and I read laws and legal opinions all the time. We don't really need to delve into whose opinion of the law is better grounded here, all we need to do is recognize that we're well into questions involving how many law school grads can dance on the head of a pin. (The answer is "none" -- law school grads can't dance. But they do make a lot of money debating the interpretation of supposedly clear language!) It doesn't matter who's right, because it's clear that no matter the supposed risks of respecting free speech rights, regulating political speech is enormously dangerous, risking legal sanction and fines that can't help but discourage political participation. 

The harm here isn't so much that the Scottsdale Area Chamber of Commerce has had its rights threatened by this opinion. Even if McLaughlin's legal excrescence is allowed to stand, the chamber can afford to pay its fines and jump through legal hoops during the next election. It will be an annoyance, but chambers of commerce are generally sophisticated and well-heeled and can afford to pay the admission fees established by campaign finance laws.

But what about you? If the Scottsdale Chamber of Commerce is ensnared in an expensive battle of the lawyers, what happens to your ad hoc group of neighbors when you put up posters saying that your local representative is a jerk (or, less likely, a credit to the community)? Will you pony up the cash for an election attorney who can get you properly registered and regulated? Or will you keep your mouth shut?

Or will you take the best option under current law and put your information out anonymously, trusting that the state can't muzzle people it can't find?

Restrictive campaign finance laws aren't peculiar to Arizona -- they apply across the country under the laws of the many states, and in elections regulated by the federal government. You might want to consider pushing for their repeal, in hopes of restoring some protection for free speech rights.

Just be careful that your efforts don't slip over into "express advocacy."

email J.D.: civilliberties (at) tuccille.com