Through its lawyer, Giovanni Cicione, the Gaspee Project has responded to a complaint that Samuel Bell of the Rhode Island Progressive Democrats filed with the Board of Elections on behalf of the state’s political establishment. (Click here for a PDF of the response.)
While acknowledging the possibility of minor technical errors, Cicione makes clear that the state of campaign finance laws and regulations is perilously close to violating Rhode Islanders’ civil rights, and that the organization will seek to protect those rights. From the letter:
Gaspee openly advises its donors how to comply with the law, not how to “evade” it. Many donors, due to serious concerns over political retribution, do not wish to have their names publicly reported to the government. The seminal case on this front arose during the Civil Rights era, when the Alabama attorney general sought to compel the National Association for the Advancement of Colored People (“NAACP”) to turn over the names and addresses of all of its members to the state. This act of force and intimidation was fortunately rebuffed by the U.S. Supreme Court as a violation of the NAACP’s and its members’ First Amendment rights. It is the very sort of harassment Mr. Bell effects with his complaint that makes the protection of their speech so important.
This critical point has more recent examples, and Cicione expands the argument to address the broader intimidation that over-regulation can present:
As Jon Riches, Director of National Litigation for the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation and General Counsel for the Institute point out in his August 15, 2015 Policy Report entitled “The Victims Of ‘Dark Money’ Disclosure,” efforts to compel disclosure in order to silence critics continue today. These include threats from government bureaucrats, like we saw when Dina Galassini tried to organize some friends and neighbors to oppose a local bond measure in Fountain Hills, Arizona. They include threats from other citizens, such as when Margie Christoffersen lost her job as a restaurant manager after her $100 donation to the campaign to ban gay marriage in California became public. And perhaps most ominously, these include threats from those wielding law enforcement authority, like the controversial Arizona sheriff, Joe Arpaio, who has jailed journalists critical of his office as well as political opponents. As the U.S. Supreme Court has long recognized, public disclosure of donations undoubtedly discourages political participation and exposes contributors to harassment and retaliation. Anonymous speech protected by the First Amendment has been the one barrier to prevent these abuses.
Mr. Riches also points out that “[t]he First Amendment does not permit laws that force speakers to retain a campaign finance attorney… or seek declaratory rulings before discussing the most salient political issues of our day. 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.”
As it considers this particular matter, the Board of Elections should be fully aware of the precedent it will be setting by bowing to a naked political attack. More importantly, the people of Rhode Island should consider whether their legislators are serving them well by writing laws that restrict their freedom of speech and leave them open to legal complaints and harassment simply for taking a position that political insiders dislike.