Electioneering communications law: necessary restraint on campaign finance or chilling of free speech?

The Saint ReportPoliticians and Planning, saintblogLeave a Comment

By Jeffrey Gould
Vice President & General Counsel, The Saint Consulting Group

gould On May 26 the U.S. District Court struck down Florida’s “Electioneering Communications Law” as a sweeping regulation of political speech. The Court wrote that “while it is true that the Legislature has the power to regulate elections, it does not have the power to regulate purely political discussions about elections.” The ruling is an important victory for the First Amendment right to free speech, and leaves citizen groups free to comment about candidates and issues in Florida without registering and making onerous disclosures to the government.

Florida’s “Electioneering Communications Law” prohibited groups of people from even mentioning a candidate or ballot issue, including zoning and land use measures, without registering and reporting all of their expenditures and donors, causing a clear chilling effect upon their right to free speech. Those who failed to comply would be fined and sentenced to jail time.

Florida’s law was drafted on the heels of the U.S. Supreme Court’s 2003 McConnell ruling that upheld the federal “electioneering communications” ban in the Bipartisan Campaign Reform Act (BCRA), otherwise known as the McCain-Feingold law. The BCRA banned unlimited “soft” money contributions by corporations, labor unions and wealthy individuals to the national political parties. In an effort to further curb the influence of corporate and labor money on federal elections, the bill’s sponsors included restrictions on radio and television broadcast ads.

The U.S. Supreme Court’s blessing of the BCRA, propelled Florida to regulate far more speech in more areas by more speakers than the federal law. Under Florida’s law, even ordinary citizen groups who support or oppose zoning and land use measures would have to register and disclose their expenditures and donors. Hopefully, the U.S. District Court’s decision to strike down Florida’s “Electioneering Communications Law,” will be the first of many decisions across the nation to reaffirm the right to free speech that is threatened by overly expansive campaign finance regulation.

Jeffrey Gould is vice president and general counsel, The Saint Consulting Group, email gould@tscg.biz, phone 781 749 7290

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