John Fund

Campaign finance laws are increasingly becoming a tool to suppress political speech, and the courts are finally waking up to the danger. Last week a unanimous Washington state Supreme Court struck down an outrageous interpretation of a law that had been used to classify the antitax comments of two Seattle talk-radio hosts as "campaign contributions" subject to regulation — that is, suppression — by local prosecutors and officials who disagreed.

Washington's highest court struck down a decision by Superior Court Judge Chris Wickham, who in 2005 ordered KVI radio hosts John Carlson and Kirby Wilbur had to place a monetary value on "campaign contributions" they made when they argued in favor of Initiative 912, a ballot measure to repeal a 9.5-cent-a-gallon increase in the state's gasoline tax. The antitax measure ultimately lost by 6% of the vote, in part because its opponents outspent its supporters by 20 to 1.

But the "unofficial" support of the measure by talk-show hosts such as Messrs. Carlson and Wilbur, who went so far as to actively tell listeners how they could sign petitions to get I-912 on the ballot, infuriated the self-styled Keep Washington Rolling coalition, which backed the gas tax hike. The coalition convinced a local prosecutor in San Juan County, along with the cities of Kent, Auburn and Seattle, to sue KVI radio demanding that it be brought under the state's campaign finance laws.

In siding with the localities, Judge Wickham insisted he was not restricting speech, merely requiring the reporting of "in kind" contributions to the antitax campaign. But in fact he was equating speech to money, for these "contributions" consisted entirely of speech.

State law bans any entity from contributing more than $5,000 in cash or services within three weeks of an election. As the November 2005 election neared, the state's Public Disclosure Commission warned the group sponsoring Initiative 912 that it faced fines, penalties and civil prosecutions if anyone contributed more than $5,000 — and that Messrs. Carlson and Wilbur could violate the law if they kept talking about Initiative 912 as the election approached. "The idea that I couldn't talk about I-912 in the last 2 1/2 weeks of the campaign, which are the most pivotal, was just outrageous," Mr. Carlson told me.


John Fund

John Fund writes the weekly "On the Trail" column, reprinted here with permission from the Wall Street Journal and OpinionJournal.com. He is author of "Stealing Elections: How Voter Fraud Threatens Our Democracy" (Encounter, 2004).

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