Campaign Finance Laws in the YouTube Age

by on March 6, 2007

Last week I was a guest on a Seattle radio station (KVI 570) program hosted by conservative talk show host Kirby Wilbur. He invited me on to talk about various First Amendment issues including efforts to regulate video games. Like many radio hosts I’ve dealt with in the past, he was very sympathetic to my free speech leanings. But Kirby Wilbur has another good reason to love the First Amendment: It’s the only thing he has to rely on in his fight against our nation’s absolutely absurd campaign finance laws.

Here’s Kirby’s story. Back in 2005, Mr. Wilbur and his KVI colleague John Carlson had the audacity to speak their minds about a ballot initiative pending in their home state of Washington. The ballot initiative was an effort to repeal the state’s recent gas tax increase. Proponents of the tax (mostly municipal government officials) were none too happy to hear people speaking their minds about the issue on a talk radio show. So, they decided to file a lawsuit demanding that the grassroots “No New Gas Tax” organization that had mobilized to fight the tax actually disclose the value of the hosts’ radio advocacy as an “in-kind campaign contribution”! And, amazingly, they got a judge to agree with them!!

In July 2005, a county Superior Court Judge named Chris Wickham ruled that Wilbur and Carlson’s advocacy on this topic was tantamount to a political campaign contribution to the No New Gas Tax effort. Judge Wickham then demanded that the organization had to disclose all “in-kind media contributions” and estimate how much Wilbur and Carlson’s advocacy was worth in monetary terms. In an attempt to comply with the court order, the group estimated the value of the hosts’ advocacy at $20,000. And under Washington campaign finance law, it is illegal for groups or initiatives to accept donations greater than $5,000 in the final 21 days leading before an election. Therefore, as National Review noted:

This posed a problem for Wilbur and Carlson, because their daily radio advocacy was listed as being worth more than $5,000 over a three-week period. If they continued to broadcast their arguments against the gas tax, they risked breaking the law. Outrageous as it seemed, the government would be able to prosecute them for publicly expressing themselves about a matter of public policy.

Outrageous is one word for it. “Orwellian” is another. This cuts to the very core of our First Amendment rights in America. The idea that campaign finance laws can be used to stifle legitimate dissent in the name of protect us from “corruption” and “undue influence” is truly Orwellian. And yet that’s the way this twisted system increasingly works in the wake our recent campaign finance “reforms” both at the federal and state level.

As I’ve stated before, it just makes me sick to think that politicians can just throw around the word “corruption” so loosely and then ban all sorts of legitimate political speech and advertising before an election as a result. Amazingly, we now live in a country that affords more constitutional protections to Internet pornography than political speech before elections. While I’m happy the courts apply such strict scrutiny to other forms of speech, one wonders what our Founding Fathers would have thought about a state of affairs where you have an absolute right to view porn online but ban certain types of political advertising or speech 60 days before an election.

OK, so what does any of this have to do with YouTube, which I mentioned in the title of this essay? Well, the other day I picked up the Washington Post and saw this story noting that YouTube has recently launched “You Choose ’08” The site is filled with presidential announcements, but one can easily imagine this sort of thing spreading to the point where every candidate for every office in America has a video like this online. And then millions of potential voters can react back with their own messages. As The Washington Post story noted:

In this kind of free-for-all, anything-goes Web environment — where a video can be sliced up, posted, circulated on e-mails with a few clicks on a mouse — controlling the message is every candidate’s biggest challenge and dearest hope. Yes, candidates can speak directly to voters. Of course, voters can speak directly back.

My God, we can’t have that! Someone might actually be… wait.. dare I say it… “influenced”!

No, seriously, there is the very real danger that the absurd campaign finance laws that cover Kirby Wilbur and other radio or television speakers could come to apply to Internet speakers as well. I’ve written about that threat here before. At least for now, things are OK. Or at least we’ve beat back early talk of applying all these rules to blogs. (At least that’s what my friend John Morris of CDT tells me via their excellent “Net Democracy” website). But stay tuned or else you could end up being the next Kirby Wilbur.

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