The ruling is significant not just because it reached the right result, but because it quite rightly rejects what has become the “reform” movement’s primary argument in support of disclosure in ballot-issue campaigns:  the so-called “informational interest.”

By Paul Sherman at Institute for Justice

As Make No Law blog readers know, the Institute for Justice is engaged in a nationwide Citizen Speech Campaign, to free grassroots political activists from government-mandated burdens on free speech in the form of campaign finance laws.  Yesterday, that campaign scored a major victory.

The Tenth U.S. Circuit Court of Appeals unanimous ruled (.pdf) in favor of IJ’s clients in Sampson v. Buescher.  The case involved Colorado resident Karen Sampson and five of her neighbors, who were sued for opposing the annexation of their neighborhood without first registering with the government and complying with burdensome disclosure laws.

The ruling is significant not just because it reached the right result, but because it quite rightly rejects what has become the “reform” movement’s primary argument in support of disclosure in ballot-issue campaigns:  the so-called “informational interest.”  The idea is to vote intelligently.

We’ve argued before that what this really amounts to is a government endorsement of the ad hominem fallacy—the belief that who is saying something is more important that what is being said—which distracts from debate on the merits of proposed ballot issues.  Now the Tenth Circuit has agreed.

On behalf of a unanimous court, Judge Harris L. Hartz wrote:

When many complain about the deterioration of public discourse—in particular, the inability or unwillingness of citizens to listen to proposals made by particular people or by members of particular groups—one could wonder about the utility of ad hominem arguments in evaluating ballot issues.  Nondisclosure could require the debate to actually be about the merits of the proposition on the ballot.

The court went on to hold that grassroots groups of citizens cannot be forced to register with the government and comply with burdensome disclosure laws as a condition of speaking out about ballot issues.

In addition to being a major legal victory, the ruling is a vindication of IJ’s groundbreaking strategic research on the costs that disclosure imposes on grassroots political activists.

In one study, Campaign Finance Red Tape: Strangling Free Speech & Political Debate, campaign finance expert Dr. Jeffrey Milyo of the University of Missouri asked 255 people to comply with campaign finance registration and disclosure laws, and not one participant managed to do so correctly.  The average correct score was just 41 percent.  Each person could have been subject to fines and penalties in real life.  Like those in Parker North, participants found the red tape was, “Worse than the IRS!” and said it would make them less likely to get involved in politics.

Another study, Disclosure Costs: Unintended Consequences of Campaign Finance Reform, showed that not only does disclosure discourage political involvement, most people make no use of disclosure information anyway.  IJ Director of Strategic Research Dr. Dick Carpenter surveyed views on disclosure of ballot issue contributors in six states, including Colorado, and found that most people—about 60 percent—do not even know where to find contributor information, nor do they seek it out before voting.

All in all, a great day for free speech in the Centennial State!

More coverage on the decision is available here.

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