When Talk Isn't Cheap

John Fund

4/30/2007 4:49:27 PM - 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.

First Amendment scholars tell me that if the Supreme Court had upheld Judge Wickham's ruling, it would have had a chilling effect on talk and news shows across America. And what would have been next? A judge ordering a newspaper to determine a monetary value for an editorial endorsement? In Parker North, Colo., residents who are fighting an annexation move are being sued merely for putting up yard signs and passing out flyers without registering these "contributions" with state election officials.

Washington's largely liberal Supreme Court agreed that political free speech was jeopardized by the attempt to regulate media outlets under campaign finance laws. Writing in concurrence, Justice Jim Johnson noted, "Today we are confronted with an example of abusive prosecution by several local governments. . . . This litigation was actually for the purpose of restricting or silencing political opponents." The court took the unusual step of sending the case back to the trial court to determine the nature of any constitutional violations the prosecutors who brought the case committed and whether the Initiative 912 supporters have a right to collect attorneys' fee from the local governments who sued them.

Also last week, the U.S. Supreme Court heard arguments in a case involving a Wisconsin pro-life group that ran afoul of McCain-Feingold restrictions on ads run by advocacy groups within 60 days of an election. Court observers believe the oral arguments went well for those challenging the law, and there is cautious optimism the court will pare back its pro-regulatory view of political speech. Certainly, the Supreme Court justices would benefit from a close reading of the Washington state court's decision.

Those in the media who support campaign regulations such as McCain-Feingold, believing that their own free speech is safe, could stand to read the decision too. The zealous pursuit of Messrs. Carlson and Wilbur showed how overreaching government officials can use such laws to intimidate the media into silence. One can only imagine how the media cheerleaders of McCain-Feingold would have reacted if they had been ordered to estimate a value for their all-out efforts to promote the legislation and were then faced with restrictions on their own speech.