Political Speech Not as Free as You Think
Daring to display homemade signs could get you a visit from the FEC.
After subjecting Liles, Morton, and two other locals to an extensive investigation, the lawyers for the FEC found that they had violated federal law because their homemade sign did not have a disclaimer. In other words, it did not say who had paid for the sign and whether or not it was approved by the candidate, even though everyone in this very small town apparently knew who was responsible. The political competition was a general topic of conversation at the Spudnut Shop on Main Street and the Dinner Bell Café on Highway 84. The FEC’s general counsel recommended sending an admonishment letter — he could just as easily have recommended a civil penalty — but fortunately wisdom prevailed amongst the commissioners and they voted simply to close the file without taking any further action.
If you think about what happened here, you begin to understand the shock and trauma these local citizens must have undergone. They were engaging in the kind of spontaneous local political activity that is a sign of a healthy democratic system and one that we should encourage. Yet they were subjected to investigation by a federal law enforcement agency and could have been forced to pay a civil penalty for their behavior. The admonishment letter would be a federal law enforcement agency’s statement that these ordinary citizens had violated federal law, not something most people take lightly. Even if you think that disclaimers in political advertising are a good idea, the fact that the statute contains no minimum threshold of activity for its application leaves individual citizens who engage in political speech at the mercy of the FEC.
Besides the disclaimer problem, if you decide to put a homemade political sign in your front yard or take out an advertisement in your local neighborhood newspaper expressing your belief that John McCain should be elected president, you’d better not spend more than $250. If you do, you are required by federal law to register with the FEC and report your independent political expenditures. Think it won’t happen?
You might want to talk to Kirk Shelmerdine, former crew chief for Dale Earnhardt, who races in NASCAR as a field-filler. In 2004 he couldn’t sell advertising on one panel of his car, so he committed the terrible federal crime of putting a Bush/Cheney decal on it. Horror of horrors — he did not report the “value” of that decal to the FEC, thus violating the independent expenditure reporting requirement. After an extensive investigation, the FEC got into a convoluted internal argument about what the value of that decal placement was, i.e., how much would Mr. Shelmerdine have to pay himself to purchase the unsold advertising space on his own car and how much was that worth in the various races he participated in.
In a four-to-one vote — I cast the dissenting vote — the commission decided to send Shelmerdine a letter of admonishment that he had violated federal law for not reporting putting a decal on his own car. No telling how much he spent in attorneys’ fees — and his own time — in responding to this silly investigation.
Reformers argue that these rules and others are needed to prevent “corruption” in our political process. It is absurd to contend that a decal on a racing car or a homemade political sign has the potential to “corrupt” a federal candidate or create the “appearance of corruption” if it went unreported to the FEC. Yet there are all sorts of independent political activities by ordinary citizens — people who have no connection with candidates or political campaigns — that are regulated and restricted by federal law. These two cases illustrate the intrusiveness and overreach of the federal campaign finance law into the lives of ordinary Americans.
Don’t be surprised if it gets even worse in the future.
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Hans A. von Spakovsky served for two years as a Commissioner on the Federal Election Commission. His recess appointment ended on December 31, 2007, when the Senate failed to confirm him because of Democratic opposition to his regular nomination over his support of voter ID requirements despite the Supreme Court upholding their constitutionality. Prior to his appointment to the FEC, he spent four years at the Justice Department, the last three as a career Counsel to the Assistant Attorney General for the Civil Rights Division.
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32 Comments
1. MU78:There are 350 civil servants working at the FEC? No wonder there are problems for them to solve. They have to justify their jobs. And what kind of degrees to you get to become a civil servant at the FEC? A masters in Stalinism?
Aug 19, 2008 - 4:57 am 2. aloysiusmiller:So you’ve become an agent of the FEC helping to propogate fear and uncertainty? Anyone who reads this will be a little less likely to express themselves in a spontaneous way.
But you could have written it differently. You could have provided the names of the FEC investigators and staff who promulgated this ruling. Better yet you may have provided their e-mail addresses or their home addresses so that we could send letters to their neighbors shaming them into ignominy for their egregious abuse of the First Amendment. Their parents and children should be shamed by their actions.
Those are the kinds of blogs we need on this story.
Name names.
Aug 19, 2008 - 5:06 am 3. Chuck Pelto:TO: Hans A. von Spakovsky
RE: You Betcha!
“Don’t be surprised if it gets even worse in the future.” — Hans A. von Spakovsky
As some sage politician put it….
Regards,
Chuck(le)
[I know no method to secure the repeal of bad or obnoxious laws so effective as their stringent execution. - Ulysses Grant]
P.S. Maybe that’s the proper course of action to deal with this onerous set of laws…..
Aug 19, 2008 - 5:09 am 4. Hogarth:“Reformers argue that these rules and others are needed to prevent “corruption” in our political process.”
The corruption horse left the barn decades ago. It’s a little late to be trying to “prevent” it.
These rules actually (attempt to) prevent our citizenry from expressing displeasure with the corrupt cabals running our country. Ironic, ain’t it?
Aug 19, 2008 - 5:15 am 5. Bill in New York:I’ve got an idea for the “third party” to run against Democrats and Republicans… let’s call it “No Lawayers” and require term limits. Whatever else the party does, it will be 1000 times better than what we’ve got. Anybody want to join?
Aug 19, 2008 - 5:21 am 6. Korla Pundit:This is a flat-out violation of Freedom of Speech, and we need more Supreme Court justices who would see it that way.
Aug 19, 2008 - 6:17 am 7. Wellspring:Fantastic article– I wish more people were aware of this.
A small coterie of political appointees monitoring and policing the political speech of ordinary Americans is a direct attack on our liberties. Combine this with the politically motivated IRS audits during the Clinton years, or the talk of reviving the Orwellian “Fairness” doctrine. The implications for our generation are probably only marginal. The implications for the next generation are frightening.
It’s even more scary when you realize that the party which stands against these attacks on our liberty has nominated a candidate who helped champion this, and currently has a president who signed it into law. Like any bureaucracy, the FEC is probably unkillable now. “Where do we go from here?” is a very good question. Where can we go?
Aug 19, 2008 - 6:20 am 8. TomJW:Let’s remember to thank McCain for restricting our fundamental right of free speach during election time.
Aug 19, 2008 - 6:22 am 9. Brian:What can happen come January just sickens me.
In DC, every street vendor sells unofficial Obama t-shirts and all of the touristy “Americana” stores in the malls and at the airports sell unofficial Obama stuff (although they, at least, have some McCain stuff tucked away). The first thing you see when you leave the gate at Regan National is a bunch of Obama shirts. These stores and vendors would certainly fall under this law if people on their lawns do, no? If the FEC can track down some rural Texans, they can surely do something about their own sidewalks. I’ve wondered about this for a while now.
Aug 19, 2008 - 6:40 am 10. fgmorley:So what happened to Bass, the one who originally put up the pro-Gore sign?
I wholeheartedly disagree with this law about curbing free expressions and opinions about matters upon which we are supposed to render a decision via an election. I’m surprised that these folks in the community let the FEC run roughshod over them. Seems like the citizens would have castrated the bureaucrats and served the spoils up at the Spudnut Cafe, ala Rocky Mountain Oysters.
Aug 19, 2008 - 6:42 am 11. Acad Ronin:The solution here is to go with the opponent, not against him. What we need is a very large number of people putting up home made signs, and then complaining about each others signs to the FEC, inundating the FEC with complaints, forcing them to send lawyers all over the U.S. to investigate trivial issues. Death by a thousand cuts. The problem is how to organize such a campaign of widespread civil disobedience.
Aug 19, 2008 - 7:53 am 12. Donna B.:Ronin, I like your idea.
Aug 19, 2008 - 8:52 am 13. Paul in NJ:I sure hope “aloysiusmiller” is a troll: “You could have provided the names of the FEC investigators and staff… Better yet… their home addresses so that we could send letters to their neighbors shaming them into ignominy for their egregious abuse of the First Amendment.”
That’s even scarier than the FEC actions, which are shameful enough. Guess there’s no right to privacy in your version of the Constitution.
Aug 19, 2008 - 9:08 am 14. tamdar:I suppose they could have just gone to their signs with a fat Sharpie and wrote their names on the signs and the disclaimer that they haven’t been endorsed by the candidates they represented. I’d encourage something more along those lines than a hate and harrassment campaign directed at some bureaucrat’s neighbors.
Aug 19, 2008 - 9:25 am 15. FEC chills free speech « Internet Scofflaw:[...] chills free speech The FEC has determined, apparently, that the First Amendment doesn’t apply to political speech, precisely the area in which it is most important. (Via [...]
Aug 19, 2008 - 9:56 am 16. I Callahan:If it were me, I’d have gotten some constitutional lawyer to take on this case. I would have put up a new sign every day, and dared the FEC to come take it down or throw me in prison for it.
There’s no way that would have gotten off the ground if it were me.
Harry
Aug 19, 2008 - 10:00 am 17. “Free Speech” Not as Free as You Think | Wood Chips:[...] Link: Pajamas Media » » Print Political Speech Not as Free as You Think [...]
Aug 19, 2008 - 10:16 am 18. BackwardsBoy:“In the FEC, you have six commissioners and a staff of 350 career civil servants making decisions on fundamental constitutional rights, deciding what political speech and activity is allowed…”
Aug 19, 2008 - 10:54 am 19. dyspeptic_curmudgeon:Excuse me, but that decision is not theirs’ to make.
“[I know no method to secure the repeal of bad or obnoxious laws so effective as their stringent execution. - Ulysses Grant]”
It is so unlike the not-normally loquacious General to run on his sentences. I suspect someone may have added some words. It probably read:
“I know no method to secure the repeal of bad or obnoxious laws so effective as execution.”
Aug 19, 2008 - 1:19 pm 20. Wearyman:The worst thing about this is that it creates what is commonly called a “Chilling Effect” on Free Speech.
Basically, if a person has to be seriously concerned that placing a yard sign or bumper sticker may cause lawyers from the FEC to descend upon them, what intelligent person will EVER bother doing that?
It’s bad enough that in some areas one has to worry about VANDALISM if you display a Republican or Conservative oriented sign or bumper sticker. but to now have to worry about the FEC suing you? This is unacceptable.
Although I have to admit, displaying an “unofficial” McCain yard sign and then getting charged by the FEC for violating a law that McCain himself created, does have a certain satisfying irony to it. Too bad I can’t afford to fight off a stupidly frivolous charge like that.
But if I was independently wealthy, you can bet your sweet bippy that I would be violating this law right and left, if only for the chance to take to the SCOTUS and get it smashed.
Aug 19, 2008 - 2:12 pm 21. Tess:Hans - thank you for a good column.
However since the Democrat/Liberal Party has
absolutely no sense of humor..its wasted on them.
I just hope that many many people will
ask the OBAMA campaign to release the
documents on OBAMA and Willima Ayers and
THE ACORN movement. If we can get that
released the American Public would learn
some things that would ‘..frighten them..’
Keep up the good work.
Aug 19, 2008 - 2:14 pm 22. Iowan:The Shelmerdine case is silly. The space didn’t sell, so it’s value is zero. This is like my ex-wife coming home with a dress she bought on clearance for $9.57 saying “look at this $200.00 dress i got for $9.57″ She was less than amused when i told her it was a $9.57 dress.
Aug 19, 2008 - 3:38 pm 23. August 19th Link Roundup | THE HOT JOINTS:[...] Political speech not that free anymore? [...]
Aug 19, 2008 - 3:44 pm 24. Jack Lohman:There is absolutely no reason why lobbyists should not be able to lobby politicians to get across their point of view. The problem comes when they lobby with cash in hand. That’s payola and bribery. It’s not the illegal bribery that is the problem, it is the legal contributions that are the problem. That must stop.
If politicians are to be beholden to their funders, I want those funders to be the taxpayers. And at $10 per taxpayer per year it would be a bargain. It would eliminate $3000 per taxpayer per year in government giveaways and reduce taxes in the process.
And it’s constitutional because it is voluntary (see http://tinyurl.com/5aadhf ) and actually increases speech and debate by providing all candidates with sufficient funds to run a campaign.
Jack Lohman
Aug 19, 2008 - 4:19 pm 25. cubanbob:http://moneyedpoliticians.net
The more ‘Campaign spending reform’ laws are passed, the worse the candidates become. If the message or messenger stinks, no amount of money will make a difference. Somehow all these ‘reforms’ always seem to work for the incumbents favors. Abolish the FEC and let any citizen with in full possession of their civil rights contribute any amount they wish to any candidate they wish to publicly. No anonymous PAC or 527 veils. List each donor by name,profession and city and state. No coerced contributions from union members. The more elaborate the ‘reform’, the more likely the corruption and subterfuge.
Aug 19, 2008 - 7:06 pm 26. Jack Lohman:I don’t want transparency. I don’t want to “know” who’s bribing my politician, I don’t want him bribed at all. Full public funding of campaigns are working beautifully in Arizona and Maine. And in Arizona they don’t even have the taxpayers pay the bill, they add a surcharge to criminal fines.
It works. Taxpayer money is no longer spent for special interest benefit, it’s spent on public need. And the politicians didn’t implement it to protect their job, they voters forced it through binding referendum.
See http://www.wicleanelections.org
Aug 19, 2008 - 10:14 pm 27. Javelin:Let’s not forget how our venerated leader had the Secret Service arrest and toss out his opponent’s supporters from his campaign rallies.
Aug 19, 2008 - 10:35 pm 28. nina:“Guess there’s no right to privacy in your version of the Constitution.
”
Paul in NJ, perhaps you could point me to that clause in the Constitution - I can’t seem to find it either.
Aug 20, 2008 - 3:04 am 29. schmuck:If the FEC is interested in stuff like that, how about the casino industry being in the tank for Obama?
I was in Las Vegas recently and every Casino I went into had signs and even people wearing vest emblazoned with “Change”.
An obvious attempt to subvert election laws.
Aug 20, 2008 - 3:35 am 30. aloysiusmiller:Paul in NJ,
I am no troll. But you must be a bureaucrat. Your moniker “in NJ” says it all.
You want to be able to make and enforce policy but with no responsibility or consequences. The shield of anonymity that the press extends to the bureaucracy keeps them in business violating our rights. What would you rather have: no first amendment rights or an exposed and shamed bureaucracy?
Aug 20, 2008 - 3:05 pm 31. aloysiusmiller:Nina,
You’re absolutely correct. But there is a right to freedom of speech. Funny that Paul in NJ prefers the right they don’t have to the right we do have.
Aug 20, 2008 - 3:06 pm 32. Pat:Free speech is a right which no dictatorship (left or right) can tolerate; hence Nazi book burnings, Sharia law, disruptions and threats to disrupt by leftist thugs on campuses, et al.
And it’s also interesting how blithely Republican leaders treat this right - as in HW Bush’s refusal to provide protection for booksellers of Rushdie’s novel, or in McCain-Feingold.
McCain’s principal argument for his grotesque censorship bill was that we need to prevent the buying of politicians. But, like all steps toward dictatorship, that was just a smokescreen.
To get the money out of politics, get the politicians out of money-making. Completely separate the government from the economy and return to the limited constitutional republican form of government whose sole purpose is to protect individual rights.
Once minds and markets are free, politicians won’t be worth buying.
Aug 20, 2008 - 8:33 pm