Advocates of campaign finance reform have long insisted that their movement is all about money, not the First Amendment. The reformists continue to maintain that they want to constrain cash, not the campaigns they disagree with.
A case recently decided by the Washington Supreme Court reveals how deliberately misleading these claims are, and how far the backers of campaign finance restrictions will go to stretch the powers of their murky reforms.
The narrative begins in 2005, when the Washington state Legislature passed a nearly 10-cent-per-gallon gasoline tax at the conclusion of the session. The 11th-hour measure spawned widespread outrage and a movement to repeal the increase through a ballot initiative.
At the forefront of this movement were John Carlson and Kirby Wilbur, two Seattle talk radio hosts. They used their popular opinion programs to rally support for the initiative.
“We used our shows to encourage people to donate their time and money,” Mr. Carlson wrote in Saturday’s Wall Street Journal. “The response was overwhelming. About 6,500 volunteers came out and in less than three days raised $90,000. In the end, more than 400,000 people signed the initiative within the month” when only 225,000 valid signatures were required to qualify the measure for the 2006 ballot.
Not so fast, the political class warned. They used Washington’s campaign finance reforms, which are based on federal law, to slap the anti-tax campaign organization No New Gas Taxes with a complaint. Prosecutors in Seattle, San Juan County and two other jurisdictions alleged the airtime that Mr. Carlson and Mr. Wilbur filled with anti-tax rhetoric, calls from irate taxpayers and information about how to support the initiative petition constituted unreported “in-kind” political contributions to No New Gas Taxes worth more than $5,000.
Because Washington’s law did not specify any difference between “in-kind” donations and cash contributions, and because the law forbids donations of more than $5,000 in the final three weeks of a campaign, the complaint was really a gag order against further anti-tax commentary by Mr. Carlson and Mr. Wilbur.
Although Washington’s campaign finance law had a clearly phrased exemption for media commentary, a Superior Court judge inexplicably allowed the case to go forward. With tens of millions of dollars in new tax revenue at stake, prosecutors subpoenaed e-mails and radio recordings from Mr. Carlson and Mr. Wilbur. The court ruled that their commentary was beneficial to No New Gas Taxes and ordered any broadcast opinions in favor of the anti-tax measure valued and reported as campaign contributions.
Imagine if this interpretation of law were applied to every city, county and state election. Candidates would have to report and assign a value to newspaper articles, letters to the editor and editorial endorsements. The media would have to cease coverage of elections in the final weeks of a campaign to avoid creating the appearance that any party benefitted from free expression.
The anti-tax ballot initiative, hamstrung by the court’s ruling, lost at the polls last year. The aim of government attorneys — to protect their tax increases — was achieved.
Last month, however, the Washington Supreme Court overturned the lower-court decision and clarified that the state law’s media commentary exemption “plainly encompasses advocacy for or against an issue, candidate or campaign, whether that involves the solicitation of votes, money or ‘other support.’ Indeed, such activities are a core aspect of the media’s traditional role.”
Amen. Let there be no doubt from here forth that many campaign finance laws are an affront to protected political expression — and that special interests will use these laws, whatever their form, to wage battle against the candidates, campaigns and initiatives that run counter to their political dogma.