Is campaign finance reform unconstitutional vote suppression?  Apparently so.

We ask this question in the wake of news that a federal judge in Cleveland has issued an injunction against an Ohio state law that required persons who are paid to register new voters to turn in the lists in person, and face felony charges for any falsities that might exist on their petitions.

According to the complaint, in 2004 over 300,000 Ohio voters were registered by non-governmental organizations, and the plaintiffs assert that these new restrictions on their activities impact “core Political Speech and Association.”  Moreover, the plaintiffs’ success in their endeavors depends on their abilities to “persuade others.”  And we learn that all this cost money – big money. It must – the felony charges challenged in the suit only apply to “paid” workers, not to volunteers.  Just one of the many plaintiffs, ACORN, has 74 employees in Ohio.  The various plaintiffs do “promotion and marketing,” have paid staff to train volunteers, and staff registration booths and recruit.  We learn that under the Ohio law, “thousands of Ohioans” will be irreparably harmed.  And we learn that many Ohioans are unwilling to assist in this activity, knowing that if they make a mistake, it could be illegal and they could be subjected to penalties.  Worse still, these volunteers must disclose to the state, “name, address, and employer,” and that this has a chilling effect on their speech.

The state passed this law, of course, in response to what it perceived as massive voter registration fraud, which not only damaged the integrity of the election process, but also costs the state large sums of money in trying to get voter lists in order.  See e.g., here, here,  here, here, here and here, for a small taste of the voluminous coverage.

The plaintiffs, which include long-time campaign finance regulatory advocates ACORN and Common Cause, are represented by, among others, the Brennan Center for Justice, which fought hard for the McCain-Feingold law.

All this raises tremendous irony.  Now, we voice no opinion on the merits of this Ohio dispute – at least not at this time.  But we would agree that surely the state has a compelling interest in preventing the corruption of its elections.  And in this Ohio case, the evidence of corruption is not the speculative, anecdotal testimony from interested legislators that they “think” things are going on, as has generally been used to justify campaign finance restrictions.  No, there’s no doubt there is some problem, though whether it merits the solution is the question.  But the evidence of a problem seems far better than that ever put forth in favor of campaign finance regulation.

We also note that the campaign finance laws, like this Ohio law, also require donors to disclose their “name, address and employer.”  And by limiting soft money uses, McCain-Feingold has dramatically hindered efforts to “persuade others,” and to register voters and get them out to vote.   Soft money was used to pay to register voters; to drive them to the polls; to fund sound trucks in (mainly minority) neighborhoods; to fund Get-Out-the-Vote phone banks; and to run advertisements persuading voters that the election was about important issues.  And it is impossible for the “reformers” at Common Cause and the Brennan Center to say that soft money was not effective in these accomplishments, or that its abolition does not hinder efforts to reach voters and get them to vote – for if that were true, the whole argument for banning it would have disappeared: that argument being that a)such expenditures determined election results, depriving those of us unable to spend money; and b) officials felt gratitude to those who engaged in such activities, because they helped their election.

So perhaps the defenders of free speech have simply framed their arguments poorly – they were arguing a right to speak, when they should have been arguing “voter suppression.”

Oh well.  But we do look forward to Common Cause and the Brennan Center joining CCP the next a campaign finance law threatens free speech – knowing, as we now do, that their previous support for these restrictions was just a silly misunderstanding of what was at stake.