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Polar opposites stand up for free speech

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Publication: Waukesha Freeman (Conley); Date: Aug 5, 2010; Section: Opinion; Page: 10A

Polar opposites stand up for free speech
New disclosure rule brings liberals, conservatives together in opposition

(James Wigderson is a blogger publishing at http://www.wigderson.com and a Waukesha resident. His column runs Thursdays in The Freeman.)

The cliché is that politics makes for strange bedfellows. The mind reels at the thought the Wisconsin Club for Growth and One Wisconsin Now could ever find common ground. But when their rights to freely organize and to freely speak are threatened, then there is common cause.

Pun intended, as Common Cause is one of those groups that would place themselves in the role of speech police. But I get ahead of my tale.

The Government Accountability Board (GAB), given broad powers by the state Legislature to regulate political speech, has formulated a rule that would require full disclosure of donations to organizations that engage in certain types of speech.

So what, you may ask? Wasn’t this disclosure required before? Well, yes and no.

The Supreme Court held that groups expressly advocating for the election or defeat of a candidate can be required to fully disclose their donors. The standard for “expressly advocating” required the use of certain key words, such as “elect” or “vote for.”

The GAB, supported by such groups as Common Cause and the terribly misnamed Wisconsin Democracy Campaign, has decided to expand the scope of its regulation to include any group whose advertisements can be interpreted as expressly advocating someone’s election or defeat in an election, without the aforementioned buzzwords as triggers.

The GAB can impose the rule even if the ad is centered on a particular issue, as political ads often are, rather than focused on the defeat or election of a particular candidate. As long as the GAB can discern an attempt to influence an election’s outcome, it will have the power to require the full disclosure of the organization’s donors.

The standard for regulation is now more subjective thanks to a failure of the Democrats in the Legislature to fulfill their obligation to the First Amendment. The Legislature has the power to overrule the GAB, but the Democrats in control chose not to.

It would seem to most observers that full disclosure of donations to political organizations would be to the public good. However, we have the lesson of California’s debate over a constitutional amendment to define marriage as reserved to a man and a woman. Activists opposed to the amendment used the disclosure laws in an attempt to intimidate, threaten and harass the amendment’s supporters mercilessly.

It’s always been known that disclosure would have the unintended consequence of chilling public speech. The country’s Founding Fathers understood the consequences when they published the Federalist Papers under pseudonyms in support of our constitution. For that matter, the one exception to the current disclosure requirement, the Communist Party, was exempted precisely because its members possibly faced retaliation.

But as we’ve seen again and again, attempts to “reform” our election laws are not really reforms, but restrictions. They are the result of a bias in favor of limiting speech rather than ensuring the maximum participation in our democratic process.

Organizations are now faced with an inexact standard of speech requirements that may cause them irrevocable harm. How are they to know which ad on which issue might inspire the caprice of the GAB? And if they should incur the GAB’s regulatory hand, what will be the consequences for them and their donors?

Many years ago, when Christopher Hitchens was in Cuba, he asked a Cuban movie director if he was free to criticize Fidel Castro. The director replied that, other than the ability to criticize Castro, the freedom of conscience and creativity was absolute. Hitchens replied that if the leadership of the state was immune from criticism, “then all the rest was just detail.”

Thanks to the GAB and its supporters, we are just wrestling with the details. It is in this atmosphere that two organizations, “dogs and cats living together” in Bill Murray’s memorable phrase, have set aside their differences to challenge the power of the state to limit their rights of association and speech. I suspect One Wisconsin Now and Club for Growth will be successful in a battle that never should have been necessary.

Perhaps the next Legislature will take their responsibilities to safeguard our rights a little more seriously.

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