Last March, I posted on the speech-quelling practice of using supposed election law infractions as a way to prevent citizens from speaking out on election issues. In that post, entitled “Free Speech for the Town of Whitewater,” I wrote that
There’s a story from the Town of Whitewater that calls out for notice — the sensible decision of a Federal judge to enjoin action against a Town of Whitewater resident. The resident wanted to mail out postcards against a town referendum that would permit liquor sales (the Town of Whitewater is presently dry). Prior use of the campaign finance law against speech from an ordinary citizen dissuaded resident John Swaffer from mailing his postcards out of concern that the campaign finance law would be used against him, too…
Ordinary citizens have reason to be concerned when politicians threaten use of the campaign finance law to prevent free expression against their political initiatives….I am strongly opposed to efforts to use campaign finance laws to limit political speech in the way described here….
It should never happen anywhere that elected officials use campaign finance laws as a cudgel against expression. It’s not merely bad policy, and over-extension of the law — it’s an unjustified violation of political speech that benefits entrenched interests at the expense of ordinary citizens.
Well, a federal court has decided the matter, in favor of free speech, against unconstitutional application of campaign finance laws, sometimes otherwise stifling opposing and dissenting views. I could not be happier to post a press release than this one —
James Madison Center for Free Speech
1 South 6th Street
Terre Haute, IN 47807
www.jamesmadisoncenter.org
PRESS RELEASE
March 17, 2009
Contact: James Bopp, Jr.
Phone: 812-232-2434; Fax 812-235-3685
jboppjr@aol.com
Whitewater Wisconsin Restrictions on Referendum Communications Declared Unconstitutional
At this time last year, John Swaffer, Jr. and Michael Rasmussen wanted to send out post cards and distribute yard signs urging residents of Whitewater, Wisconsin, to vote against a local referendum that would have overturned the town’s ordinance against liquor sales. But under Wisconsin law, the cards and signs would have to include a disclaimer, and because they would have cost more than $25, Mr. Swaffer and Mr. Rasmussen would have to register with the State as political committees, maintain a separate bank account, keep detailed financial records for three years and file reports with the state. Attorneys at Bopp, Coleson & Bostrom filed suit in federal court, and won a preliminary injunction allowing the two to send the postcards and distribute the yard signs without the disclaimer or forming a political committee. The court has now issued its judgment in the case, and declared the Wisconsin laws unconstitutional.
The court ruled that the registration, recordkeeping and reporting requirements “act to inhibit the open exchange of ideas and political conversations on referendum issues,” where “‘the direct participation of the people’” is most important. Furthermore, the court found the disclaimer requirement to be a broad prohibition of anonymous political speech that “run[s] afoul of the First Amendment” under the Supreme Court’s 1995 decision in McIntyre v. Ohio Elections Commission.
“The court recognized the Wisconsin laws as classic examples of overreaching campaign finance laws,” says James Bopp, Jr., lead counsel for the plaintiffs. “Government is not free to regulate every citizen who wants to send post cards or put up yard signs concerning a referendum—such activities are at the core of the First Amendment.”
The case is titled Swaffer v. Deininger et.al., 08-C0208, and a copy of the court’s order is available at the James Madison Center’s website www.jamesmadisoncenter.org.
James Bopp, Jr. has a national campaign finance and election law practice with Bopp, Coleson & Bostrom. He is General Counsel for the James Madison Center for Free Speech.
I also note that the story has received regional coverage, including mention in the Chicago Tribune. See, “Judge Says Wis. Campaign Finance Laws Go Too Far.”
Congratulations to all who fought this good fight on behalf of free expression.
