Whether intentionally or through bad drafting, the legislation making its way through the Rhode Island General Assembly as H7147, which passed the House last week, and S2369, which is being heard in the RI Senate Judiciary Committee this afternoon, would take a dramatic step infringing on the civil rights of Rhode Islanders who participate in the local political process. On the bright side, if passed, it may spark a turning-point lawsuit forcing the federal and state governments to face the fact that regulating political speech is implicitly a contradiction of Americans’ First Amendment rights.
Understanding the legal consequences of this legislation requires three layers of analysis: what the bill explicitly does, what the bill would probably do because of the way it’s written, and how the law would interact with legal precedent. Although the House and Senate versions of the legislation started out identical, H7147 has been amended, so this analysis will focus on that version, as the most advanced.
What the Bill Explicitly Does
As campaign finance law currently exists and is enforced, in Rhode Island, groups advocating on either side of ballot questions have to file campaign finance reports once they’ve spent more than $1,000 for the year. Technically, this requirement applies only to candidates, political parties, and political action committees (PACs), but legal precedent suggests that a group needn’t actually file as a PAC to count as one for the purpose of filing reports. Ballot questions can be in statewide elections or considered at any “financial town meeting, financial town referendum, or other election at which amendments to a city or town charter are proposed” (RIGL §17-25-7(a)).
The reports, following a schedule set by the state Board of Elections (BOE), must list “the name, address, and place of employment” of any person or group donating more than $100 during the year.
An extension of this subsection creates vague and separate rules for questions presented specifically at financial town meetings. Because such elections are relatively rare, the issues raised are largely untested. Strictly speaking, the law applies a lower threshold, requiring “any entity” advocating at the financial town meeting to file “reports of contributions or expenditures every seven (7) days” once its spending exceeds $100.
The proposed legislation would broaden this extension so that it applies to any “entity” organized in any way, with a long list capturing every way in which it is possible for an “entity” to be formed, including 501(c)(3) non-profits and labor unions, among others. Not stopping there, the bill also applies the requirement to any individual person who might spend more than $100 during the year to express opinions on ballot questions affecting his or her community.
The extension would also be broadened to include “any question presented” at a “financial town referendum or other election at which amendments to a city or town charter are proposed.” Note that the law doesn’t just apply to budgets and charter amendments, but to anything that might be considered on the same ballot or at the same time, from bond issuances to zoning changes.
What the Bill Would Probably Do Because of the Way It’s Written
Because the separate rules for financial town meetings are so vague and untested, it isn’t clear how they apply. The lack of additional forms or regulations suggests that the BOE interprets the statute as simply lowering the reporting threshold to $100. However, the language is set apart by a “notwithstanding” clause, meaning that it supersedes any other state laws, and it is less specific about what must be reported. That is, one could reasonably interpret the requirement to report “contributions and expenditures” to mean all “contributions and expenditures,” regardless of the amount.
The changes proposed in H7147 and S2369 exacerbate this problem. The “notwithstanding” clause is moved to be more conspicuous at the beginning of the section. Moreover, the separate “seven days” reporting requirement is changed in the amended version to repeat a reference to the standard campaign finance reporting schedule, which appears just a few lines earlier in the law, before the “notwithstanding” clause. So:
- The “notwithstanding” clause separates the sentence from any other state law.
- The legislation specifically makes reference to ways in which the extension differs from similar rules (i.e., with the lower reporting threshold).
- At the same time, the legislation repeats the schedule reference.
Therefore, the BOE or a judge considering a lawsuit could very easily conclude that if the General Assembly had wanted other provisions of the law — like the $100 threshold to report individual donors — to apply in the cases of financial town meetings, financial town referenda, and charter amendment elections, then the statute would have repeated those provisions.
In other words, any and all donations would have to be reported, no matter how small, and whether or not they were given specifically for the issue in question. A 501(c)(3) that mainly engages in true charity work, but that involves itself in some local political matter in a small way — say a zoning change affecting its headquarters or a budget increasing or lowering a town grant — would have to identify people who donate not only for the advocacy, but also for the charity.
How the Law Would Interact with Legal Precedent
The language of H7147 and S2369 applies so broadly and has such a low threshold that it points directly to the unconstitutional nature of campaign finance, itself.
At the highest level, applying campaign finance regulations to issue advocacy, rather than just campaigns for specific candidates, reduces the public interest significantly. A special interest might back a particular politician for reasons that are entirely unpredictable to the general public, because a large donor could essentially buy a favor that the politician repays in some specific way after he or she is elected. Additional transparency therefore contributes new information for voters to consider. With ballot questions, the parties that benefit or are harmed can be inferred simply by the nature of what the question would do.
Moreover, how individual voters feel about issues placed directly on a ballot goes directly to the opinions and beliefs that both the U.S. and Rhode Island Constitutions grant us a blanket right to express and promote. Indeed, as recently as October 2014, the U.S. District Court covering Rhode Island issued a ruling affirming Rhode Islanders’ constitutional right to express their views anonymously despite an old Rhode Island law (17-23-2) that required political literature to name the author and his or her organizational backers.
So obvious did Chief Judge William Smith find this conclusion, that he issued it as a summary judgment, with no trial necessary. Earlier the same year, the attorney general dismissed charges in a similar case filed at the state level.
Nearly a decade earlier, the U.S. District Court struck down some of Rhode Island’s restrictions on ballot question advocacy, including limits on the amount that individuals or groups could spend, a ban on corporate spending for that purpose, and a ban on advocates’ coordinating their activity. Although Chief Judge Ernest Torres acknowledged some legitimacy to requiring campaign finance reporting on ballot questions, he emphasized a higher level of scrutiny to prove that the state has a public interest in knowing who is advocating a particular position.
At higher thresholds, legislators, the courts, and the public can pretend that requiring people to report their spending on issue advocacy is different from forcing them to give up their right to privacy when it comes to anonymous speech. But with a threshold of $100 applied even to individuals, it is no longer possible to pretend. A constitutional right to free speech is cheap, indeed, if it applies only to the extent that one can promote that speech for $100 or less and only when it doesn’t apply to a matter on which voters are actually going to have a say.
Whether Rhode Island representatives and senators are lying about the intent of this legislation or are conveniently ignorant of its language and likely effects, their support for it proves their lack of concern about their constituents’ rights. H7147/S2369 also exposes the assault on the constitution inherent in all campaign finance law.
Debate in the Rhode Island House left no doubt that such law has become a weapon for powerful insiders to use against those who oppose them in the public. When grassroots activists win a local vote, room always exists for the insiders to imagine that their opponents are cheating somehow and that new layers of speech regulation would expose their secrets… and expose their supporters to intimidation by the losers.