[EL] Civic Courage, Indeed

[BZall at aol.com]

The other problem with relying on "Boards of do-goodedness" and their  
arcane rules is that it isn't only the "little people" who can't figure them  
out. My law clerk undoubtedly knows more than 99.9999% of all  Americans about 
the workings of campaign finance laws and rules, but his inquiry  today to 
North Carolina about how they define a term in a statute (with no legal  
precedents or administrative guidance) got this answer: "I called NC for 
clarification on the meaning of  “XXX” and they told me to contact an attorney." 
 
This is not an isolated instance. As the Tenth Circuit noted in striking  
down Colorado's political committee provisions:
 
In our view, the burden on Plaintiffs’ right to association imposed by  
Colorado’s registration and reporting requirements cannot be justified by a  
public interest in disclosure. The burdens are substantial. The average 
citizen  cannot be expected to master on his or her own the many campaign  
financial-disclosure requirements set forth in Colorado’s constitution, the  
Campaign Act, and the Secretary of State’s Rules Concerning Campaign and  
Political Finance. Even if those rules that apply to issue committees may be  few, 
one would have to sift through them all to determine which apply. As the  
Supreme Court recently observed in rejecting a proposed intricate 
interpretation  of the term electioneering communication in 2 U.S.C. § 441b: “Prolix laws 
 chill speech for the same reason that vague laws chill speech: People of 
common  intelligence must necessarily guess at the law's meaning and differ 
as to its  application.” Citizens United, 130 S.Ct. at 889 (brackets and 
internal  quotation marks omitted). The Secretary of State’s website 
acknowledged that the  State's campaign finance laws and rules “are complex,” Aplt. 
App., Vol. II at  750, and the official who oversaw the Secretary of State’s 
campaign finance  department testified that she advises  those with difficult 
questions to retain an attorney. And even attorneys are not error-free. 
Recall  that the complaint filed by attorney Hawkins with the Secretary of 
State  incorrectly alleged that persons who had obtained campaign materials from 
 Plaintiffs could be subject to sanctions under Colorado law. Moreover,  
failure to comply with the rules can be expensive; failure to meet a recording 
 deadline can cost $50 a day, see Colo. Const. art. XXVIII, § 10(2)(a). As  
Plaintiff Becky Cornwell stated in her affidavit: 
I  found the [campaign] laws difficult to understand and I constantly 
worried about  being sued for even the smallest error. Particular points—like 
non-monetary  contributions—were counterintuitive; the forms were hard to 
follow; the website  was often slow and had technical glitches; and getting 
questions answered often  took several days and sometimes did not yield correct 
answers or even any answer  at all. 
Aplt. App., Vol. II at  490. 
It is no surprise that Plaintiffs felt the need to hire counsel upon  
receiving the complaint against them filed with the Secretary of State. One  
would expect, as was the case here, that an attorney's fee would be comparable  
to, if not exceed, the $782.02 that had been contributed by that time to the 
 anti-annexation effort. This is a substantial burden. See Citizens  
United, 130 S.Ct. at 889 (“The First Amendment does not permit laws that  force 
speakers to retain a campaign finance attorney, conduct demographic  marketing 
research, or seek declaratory rulings before discussing the most  salient 
political issues of our day.”). And added to that burden was the burden  on 
Plaintiffs of time, energy, and money to review the law themselves and to  
take off work to attend the hearing on the complaint against  them. 
On the other side of the scale, the public interest in disclosure is  
minimal. 
Sampson  v. Buescher,  625 F.3d 1247, 1259-60 (10th Cir.  2010).
It isn't just "speech," whether you characterize that as media corporations 
 or everyone; it's association, and petition for redress of grievances, and 
 generally the Norman Rockwell-type being-able-to-speak rights at stake. 
Will we  punish EVERYONE because you don't like what George Soros or Sheldon 
Adelson does  with his money?
 
Please, remind me again about the tremendous government  interest 
supporting these laws to outweigh these burdens on speech when  even well-trained and 
experienced lawyers and government officials can't  interpret them so 
speakers and just plain Americans will risk going to  jail or suffering crushing 
multi-million dollar fines and legal fees? 

Barnaby Zall 
Of Counsel 
Weinberg, Jacobs  & Tolani, LLP 
10411 Motor City Drive, Suite 500
Bethesda, MD  20817
301-231-6943 (direct dial) 
bzall at aol.com  
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In a message dated 11/21/2013 3:38:31 P.M. Eastern Standard Time,  
benjamin.barr at gmail.com writes:

Boards  of do-goodedness then promulgate bizarrely complicated and  
incomprehensible rules that attempt to define concepts like the "appearance of  
corruption" and so on, leaving ordinary speakers with no idea when and how it  
is safe to speak without the friendly enforcement division of the FEC  
launching multi-year investigations into why you spoke the way you did or with  
pre-dawn raids showing up at your front  door.

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