IJ Takes on Mississippi’s Campaign Finance Laws

Wednesday, December 28th, 2011

Another important case from the Institute for Justice shows how laws passed under the guise of disclosure and clean elections quickly become a barrier to free speech and civic engagement.

Vance Justice, Sharon Bynum, Matt Johnson, Alison Kinnaman and Stan O’Dell are Mississippi citizens that simply want to join together and speak out in favor of Initiative 31—an effort that would provide Mississippi citizens with greater protection from eminent domain abuse. But if they spend just $200 on signs, buttons and flyers without first registering with the government and navigating a complex web of regulations, they would be subject to fines and possible criminal penalties . . .

Like many Americans, the Plaintiffs in this case—Dr. Stan O’Dell, Sharon Bynum, Matt Johnson, Vance Justice, and Alison Kinnaman—care deeply about the direction of the country, its laws, and its political leaders. For several years, the group has been meeting informally near their homes in Oxford, Mississippi to discuss political and legal issues of the day. Occasionally, they have engaged in activism, organizing rallies and passing out copies of the Constitution on Constitution Day . . .

One issue the Plaintiffs have discussed often is private property rights, and, specifically, the impact on property rights of the power of eminent domain. They, like many Americans, were outraged over the Supreme Court’s decision in Kelo v. City of New London, that upheld the use of eminent domain for economic development. As a result, they were quite happy when eminent domain reform made it onto the ballot this year, in the form of Initiative 31 . . .

The Plaintiffs support Initiative 31 and would like to convince their neighbors to vote for it as well. Unfortunately, they face a stumbling block that all too many Americans face when they wish to speak out about political issues—the campaign finance laws.

Most people think laws affect only those running for office. Few are aware that the laws restrict the ability of ordinary Americans to advocate for or against ballot issues. These laws impose serious burdens on First Amendment rights and can result in crushing legal costs and penalties when they are violated. The regulations in Mississippi and other states starkly illustrate how campaign finance laws strangle citizen speech.

Under Mississippi law, any time two or more people join together to spend more than $200 to support or oppose a ballot issue, they become a fully regulated political committee.[3] At today’s prices, even a quarter-page advertisement in the local newspaper, or just a handful of signs and flyers can cost over $200.

Thus, just for trying to speak effectively, the Plaintiffs would have to register with the state, appoint a Director and Treasurer, and file monthly, annual, and other periodic reports of their activities. These reports require the Plaintiffs to keep track of every single dollar that is spent or contributed, and from whom that dollar came. If one of the Plaintiffs just drives to a copy shop to pick up flyers, the value of the gas has to be reported as a contribution.

The reports also require the Plaintiffs to keep track of a great deal of personal information about themselves and their supporters. They have to keep track of each contributor’s name, street address, occupation and employer, together with the amounts and dates of their contributions. Even individuals who wish to spend more than $200 of their own money must report their personal information and activities to the state.

To make matters worse, all the personal information they have to report is made public on the internet for all the world to see. This gives strangers—and potentially political opponents or even identity thieves—access to names, addresses, telephone numbers, occupations, employers, and political views.

Yet another area of public life where you now need to hire an attorney merely to keep yourself out of jail.  Or at least from being fined. Some 24 states have laws like the one in Mississippi.  Justice v. Hosemann is part of a broader IJ campaign to overturn similarly burdensome campaign finance laws around the country.

Digg it |  reddit |  del.icio.us |  Fark

28 Responses to “IJ Takes on Mississippi’s Campaign Finance Laws”

  1. #1 |  Steamed McQueen | 

    Yet another area of public life where you now need to hire an attorney merely to keep yourself out of jail.

    What else did anyone expect when the political system is staffed and run entirely by lawyers?

  2. #2 |  JdL | 

    The Institute for Justice is a wonderful organization. They don’t call themselves libertarians, but their court cases have a libertarian thrust, and they actual WIN much of the time. I’m going to spend more money donating to them.

  3. #3 |  Gator | 

    I suppose it wouldn’t take very many Mississippian bloggers and such paying for domain name and hosting services to collectively hit the $200 limit and become regulated (regulatable?).

  4. #4 |  that guy | 

    They do call themselves libertarian.

    ” As our nation’s only libertarian public interest law firm,”

    From the mission/about page.

  5. #5 |  albatross | 

    I have no doubt that the folks who drafted the law understood and hoped for such a consequence.

  6. #6 |  Ryan Cooper (@RyanLouisCooper) | 

    It’s kind of a worst of both worlds situation. Ordinary people face significant challenges to free speech, while huge corporations and the wealthy can spend to their heart’s content without even disclosing their identity.

  7. #7 |  Murc | 

    Hmmm.

    I feel for these people, and it does seem outrageous… but where is the line drawn here?

    To put it another way… I find nothing wrong with a few people gathering together and devoting their resources to fighting for issues they believe in. My problem is that that breaks down if the few people in question are multi-millionaires who can anonymously devote millions of dollars to said issues. I feel that has a deleterious effect on the body politic as a whole, and as a citizen I kind of feel like I have the right to know where huge streams of money flowing into our political system come from and to know the nature of the people who are gatekeepers of that stream.

    Clearly, the state of Mississippi has fucked up in this regard, as these are a few working stiffs who are just trying to get something done. Bare minimum, those monetary caps could use some SERIOUS adjusting.

  8. #8 |  sigh | 

    Restricting the use of money to facilitate political speech is virtually indistinguishable from prohibiting the use of tools you would purchase with money – whether that is a pen and paper, broadcast time, or a domain.

    This isn’t a slippery slope, it is a CLIFF. Do not fall into the “laws are for other people” trap (I’m looking at you, Murc), it will lead you straight over the edge.

    If the government has the power to prohibit someone from using something otherwise legal in the pursuit of political speech, then ultimately they have the power to say that your “right” to free speech extends only to standing on your front porch and yelling. (but no doubt only between the hours of 8AM and 8PM on weekdays, I’m sure…)

    There is a simple solution to the problem of funding in activism – you either release the information or you don’t. If you don’t, then you are open to criticism for it. Our system of government was not intended to be, and should not be, a tool to try and make people think the “right” things or vote the “right” way, whether it is through prohibiting political speech that you do not approve of or through some other means.

    And that is what this is about – people who wish to prohibit political speech they don’t approve of.

  9. #9 |  DaveT | 

    Mississippi has a shitty campaign finance reform law, so obviously it’s impossible to make any good ones.

  10. #10 |  Murc | 

    @sigh-

    Just so we’re clear, you’re not even in favor of basic transparency, yes? You think people ought to be allowed to spend as much money as they want, in any way they want, completely and totally anonymously, to influence elections?

    I’m terribly sorry, but I have to disagree with you. I think that I, as a citizen, have a right to know how my politicians are bought and paid for. (Expecting them NOT to be bought and paid for might be a bit of a stretch, sadly.)

  11. #11 |  Warren | 

    Vance Justice?

    With a name like that I expect he could single-handedly take care of the issue.

    Just drive his 70′s muscle car into the lobby of the Election Bureau, leap out and start punching people in the dick until they agree to shitcan the law.

  12. #12 |  Radley Balko | 

    You think people ought to be allowed to spend as much money as they want, in any way they want, completely and totally anonymously, to influence elections?

    I do. I’m much more concerned with how politicians vote than why they vote the way they do.

  13. #13 |  Murc | 

    How derives directly from why, tho, doesn’t it? Even if my political interests align with the highest bidder, its in my interest to know that my politicians are, in fact, for sale to the highest bidder, and who that highest bidder is, yes?

    Because the highest bidder could change suddenly and abruptly, and without transparency I have no way of anticipating that, or even of deciding that I’d rather vote for someone who is more ideologically consistent and less for sale, since I have no way at all of determining who is for sale, and to what degree, and who isn’t.

    For that matter, I don’t even have a way of staying well-informed, since unlimited anonymous cash means unlimited pseudo-science and misleading data being deployed, with absolutely no way to backcheck it.

  14. #14 |  David M. Nieporent | 

    “Just so we’re clear, you’re not even in favor of basic transparency, yes? You think people ought to be allowed to spend as much money as they want, in any way they want, completely and totally anonymously, to influence elections?”

    The phrasing of your question uses conclusory buzzwords that beg the question. What does it mean to “influence elections”? You can influence people; you can’t influence an election. Now, in this context, by “influence people” you mean “Try to persuade them.” Can people spend money to try to persuade people to vote for/against a particular candidate or a particular ballot issue? Suddenly the behavior doesn’t quite seem so scary, does it?

    (Note: when you say “spend… in any way they want,” you don’t really mean that. I mean, we’re not talking about hiring a hitman to take out a political opponent, or handing out cash outside the polling station. You mean “printing campaign literature or yard signs” or “driving around and knocking on doors” or “organizing rallies” or the like.)

  15. #15 |  derfel cadarn | 

    Look at the list of requirements about fiscal matters and their need for precise accountability And then consider that the GAO has concluded that accounting practices at the Pentagon and those between fedgov agencies are so inaccurate,befuddled and fraudulent as to be unauditable. I do realize that this is federal and the other is state,but if you are required to account for each penny under penalty of law then why are not our elected and bureaucratic “servants”? When the rules are only for you then you KNOW the fix is in.

  16. #16 |  Murc | 

    @David-

    I do, in fact, mean to include things like handing out cash outside a polling station. If money is speech, how is that any different from handing out campaign literature?

    Also, the way you phrase it makes it sound like unlimited, untraceable, anonymous cash in politics will simply lead to there being lots of rallies and yard signs and campaign literature, as opposed to mammoth smear campaigns of shadowy provenance that have no discernible ties to any candidate or party, media outlets that are wholly owned propaganda subsidiaries of political parties while pretending to be otherwise, and politicians for whom it is impossible to tell who their financial masters are. And that’s just the tip of the iceberg.

    Basically, I take the position that if you’re a public servant, your finances are the publics business. I believe that I have an affirmative right as a citizen to know who is lining your pockets and to what degree. If you don’t like that, go be a private citizen, where I endorse a far less intrusive set of standards.

  17. #17 |  C. S. P. Schofield | 

    Murc,

    The argument is always that we need to keep the Rich from buying the government. Somehow the means used to do that always keep the small non-rich groups from participating and don’t seem to affect the rich much at all. At this point I no longer want to go to the trouble of appearing to be against the influence of the rich, if it isn’t going to actually do much. I want to repeal all campaign finance laws except those that rule out non-citizens, and see where we are then.

  18. #18 |  AnonLawStudent | 

    +1 to CSP.

    Those who advocate regulations “to protect the little guy” seem ignorant of the reality that the big guys are fine with regulation: they are the only ones who can afford the lawyers necessary for compliance. When I was a first starting at a V10 firm, one of the tasks assigned to a close colleague was to review the changes to an energy bill on a daily basis so that we could lobby appropriately. Our clients could afford 500 dollar per hour lawyers to lobby, shape the restrictions imposed, and again afford the 500 dollar per hour lawyers necessary for compliance. They were happy to do so because their smaller competitors couldn’t.

  19. #19 |  Murc | 

    @CSP

    The removal of spending restrictions is something I disagree with, but it at least makes sense to me. There’s an underlying logic I can respect.

    What I don’t get is being flat against transparency in the finances of our public officials and our elections. That seems to be an important prerequisite for a halfway functional democracy to me. Hell, Randy runs posts here on a semi-regular basis about people with too-cozy financial relationships between government officials and officeholders and people in private enterprise. His ongoing fight against private companies assuming core state functions and their associated revenue streams (traffic cameras that are administered by for-profit firms for a cut of ticket fines) springs to mind.

  20. #20 |  albatross | 

    Murc:

    Those seem like two different issues. If you’re writing a check to the governor, that should be disclosed and disclosure shold be required by law, imo. But if you’re spemding money to promote a poitical issue or point of view, imposing a bunch of disclosure requirements seems like it cant be consistent with the first amendment.

  21. #21 |  David M. Nieporent | 

    @Murc: “I do, in fact, mean to include things like handing out cash outside a polling station. If money is speech, how is that any different from handing out campaign literature?”

    Nobody has ever said that “money is speech,” except as metaphorical shorthand. What people have said is that money used for speech is the equivalent of speech.

    Pick your favorite right — whether it’s guns, abortion, whatever. Now, nobody would say that “money is guns” or “money is abortion.” However, restrictions on the use of money to buy guns or abortion is the equivalent of restrictions on the right to bear arms or have abortions. A law that says “You may not spend more than $50 on a gun/abortion” has the effect of banning guns/abortions in almost all cases. A law that says “You may not spend more than $50 on a gun/abortion unless you prepare a stack of paperwork and spend thousands of dollars on legal fees” may not be a literal ban on guns/abortion, but it’s a severe restriction on the exercise of one’s rights to bear arms/have abortions. Similarly, a law that says you may not spend more than $200 speaking out against a ballot initiative unless you prepare a stack of paperwork and spend thousands of dollars on legal fees may not be complete censorship, but it’s a severe restriction on one’s right to speak out.

  22. #22 |  David M. Nieporent | 

    @Murc – “Basically, I take the position that if you’re a public servant, your finances are the publics business. I believe that I have an affirmative right as a citizen to know who is lining your pockets and to what degree. If you don’t like that, go be a private citizen, where I endorse a far less intrusive set of standards.”

    Assuming for the sake of argument that we agree with this, the problem is that these laws have nothing to do with the finances of public servants. They have to do with “private citizens” spending their own money to buy ads, print pamphlets, etc. We’re not talking about campaign contributions. We’re talking about people spending money on their own.

    If you hate Barack Obama or Mitt Romney (or both) and put up a website saying, “Obama/Romney suck!”, you’re entitled to do that. Now, you can do that without spending $200; websites are cheap. But if you want to put up a billboard where lots of people in town can see it, you can’t. You need to spend more, and perhaps get together with a bunch of other like-minded people in order to afford it. If you want to print up 10,000 fliers and hand them out on street corners, you can’t do it under the $200 threshold. But none of that converts you from a private citizen to a public official.

  23. #23 |  Mike T | 

    #7,

    To put it another way… I find nothing wrong with a few people gathering together and devoting their resources to fighting for issues they believe in. My problem is that that breaks down if the few people in question are multi-millionaires who can anonymously devote millions of dollars to said issues.

    If the millionaires do it as individuals, they are liable as individuals if they break the law. This is what the left doesn’t understand. PACs are evil because they allow the rich to create dozens of corporations with limited liability and who can use that to great advantage in politics. When a millionaire, acting as an individual, gives enough money at a time that it looks like a bribe, the DA or US Attorney for their region can directly bring charges without piercing the corporate veil.

  24. #24 |  Nick T. | 

    Murc,

    Your arguments seem based on a premise where the actors in our democracy are helpless non-agents compelled by money and limited choices, but thisd plainly isn’t so.

    Politicians are not required to take corporate money; they are not required to fail to disclose on their own from whom they receive donations; voters are not required to vote for anyone whom they believe has not been fully transparent; voters are able to see an ad – full of smear attacks!!! – and see that because it is from an anonymous source, it is not credible; voters are capable fo being bombarded with ads and yet not believing the messages contained in them.

    I admire and relate to your desire to have a better democracy than the shitty, atrocious one we find ourselves stuck in, but the solution does not lie in some new regualtions that can be easily navigated around – but only by the wealthy – and will end up being crafted by power hungry politicians at the direction of big money benefactors.

    Let’s get specific: you talk abotu Fox news (implicitly) but most laws would exempt and ostensible “news” organiation from restricitons on politically-oriented content. So what then? Do you go about redefining news to be sufficiently un-biased? But what about libertarian biases or anti-government biases which end up actually being the very point of journalism to begin with? Who decides? Do we really want anyone deciding? So ok Fox can put out anything they want… what’s to stop other corporations from setting up news organizations and buying time on other networks to run their network? or running it online even though it’s clearly just a subsidiary of GE or Exxon? Aren’t they all subsidiaries of big coprs anyway? The point is, it gets very very tricky, and in the end folks like Unions, the ACLU, and concerned citizens in the Boca Vista condo complex get caught up wasting their time complying with procedures just to put an ad in a newspaper or make a youtube video.

    We’re better off fighting for a smarter public, and supporting better media and candidates than waiting on some new law to fix it.

  25. #25 |  Mike T | 

    #19,

    What I don’t get is being flat against transparency in the finances of our public officials and our elections. That seems to be an important prerequisite for a halfway functional democracy to me. Hell, Randy runs posts here on a semi-regular basis about people with too-cozy financial relationships between government officials and officeholders and people in private enterprise. His ongoing fight against private companies assuming core state functions and their associated revenue streams (traffic cameras that are administered by for-profit firms for a cut of ticket fines) springs to mind.

    I don’t think anyone here is against transparency in those areas, but rather against this style of implementation. It’s unreasonable to make the restriction so low. Note that at $200, the fee is so low that a handful of burger flippers couldn’t run an ad demanding a minimum wage hike without forming their own committee. This law doesn’t target millionaires. It quite clearly targets those who don’t have the time to either comply with the laws themselves or the means to hire people who can work on the compliance on their behalf.

  26. #26 |  Mike | 

    Have there been reported cases of identity theft in this context? Is the publically available info that sensitive. ie, does it contain bank accts & social security numbers?

  27. #27 |  Boyd Durkin | 

    I’m terribly sorry, but I have to disagree with you. I think that I, as a citizen, have a right to know how my politicians are bought and paid for.

    I agree with Murc @#10…as long as:
    1. All political contributors must register with my company ($500/registration).
    2. All political contributors must fill out a bunch of forms I create.
    3. Failure to fill out these forms according to rules I make will result in a $500K fine.

  28. #28 |  When Campaign Finance Reform Has the Reverse Effect « Threads from Henry's Web | 

    [...] Radley Balko (The Agitator) has an interesting article on actions of the Institute for Justice, which is helping some folks in Mississippi challenge the laws on spending to advocate for a political cause. The idea of such laws, of course, is to provide for openness and accountability in politics. In this case, however, it provides a major barrier to a citizens’ group’s efforts to advocate for a cause. [...]

Leave a Reply