Almost a month ago, the U.S. Supreme Court declared in Citizens United v. F.E.C. that there is no such thing as a “de minimis”—or insignificant—denial of free speech. The ruling should have immediately sparked a sweeping repeal of campaign speech regulations that were previously justified as imposing only a “de minimis” burden. An axe, not a scalpel, should have been taken to the volumes of complex, vague and burdensome campaign laws. Instead of seizing the moment, it appears Arizona Secretary of State Ken Bennett wants follow the lead of U.S. House Speaker Nancy Pelosi.
Secretary Bennett has joined Pelosi’s drive to preserve the barriers to political entry swept away by Citizens United. Instead of outright bans on campaign speech by individuals who associate through corporations or unions, the Secretary of State wants to kill campaign speech through regulation. Secretary Bennett wants to threaten class 6 felony charges against any individual or group spending $500 or more to promote their political ideas unless they register with the State and continuously report their expenditures every 24 hours during an election season.
Political elites easily navigate such laws. But they will confuse ordinary people, deter them from seeking a voice in politics, and entrap them with mistakes that will expose them to serious criminal charges. Advocates of these new regulations have no idea how they would impact newer methods of political expression, such as Internet blogging. And no one at a recent meeting called by the Secretary of State could identify any actual problem the regulations were meant to fix. The justification was that something had to be done, and the State could always clean up the mess later. Besides, the advocates reasoned, the Supreme Court did not strike down reporting laws.
Only politicians, bureaucrats, and lobbyists could agree with the argument that anything that can be regulated under the Constitution should be regulated. Citizens United does not embrace prior restraints on free speech in the guise of campaign registration and reporting requirements. Rest assured, if Secretary Bennett and Speaker Pelosi go too far, the Goldwater Institute won’t let the State transmute the golden principles applied in Citizens United into a leaden excuse for diminishing our most fundamental rights.
Nick Dranias holds the Clarence J. and Katherine P. Duncan Chair for Constitutional Government and is Director of the Joseph and Dorothy Donnelly Moller Center for Constitutional Government at the Goldwater Institute.
Goldwater Institute: Landmark free speech case restores right of groups to join election process
Goldwater Institute: Amicus Brief in Citizens United
U.S. Supreme Court: Citizens United v. Federal Election Commission decision