Posted on Mon, Feb. 05, 2007

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Government watching your politics

By BRADLEY A. SMITH

Guest columnist

Answer this statement with “Agree” or “Disagree”: The government of South Carolina should maintain a database of its citizens and monitor their lawful political activity.

If you are like the vast majority of the thousands of citizens to whom I have directed this statement over the years, you disagree. Most of us believe that we have a right to privacy, and that it is not the government’s business to track our peaceful political activity. Yet in its Dec. 8 editorial on the lawsuit brought by South Carolinians for Responsible Government against South Carolina’s campaign disclosure law, The State cavalierly dismisses the notion that such privacy concerns even exist.

The background is relatively simple. Last spring, SCRG paid for radio ads urging its fellow citizens to contact various members of the Legislature about a pending bill on school choice. The ads did not mention the upcoming election or that the members named were candidates for re-election. It did not discuss their personal qualifications. It did not discuss their position on the issue of school choice, though it did compare their support for other tax credits to the benefits allegedly to be derived from tax credits for school choice. It concluded by providing listeners with the office phone number of the legislator, and asked citizens to call and voice support for tax credits.

A public service? Not according to Rep. Bill Cotty, who complained to the South Carolina Ethics Commission. The commission informed SCRG that because its ads mentioned an officeholder, it needed to register as a political committee. SCRG responded by suing the commission.

The State seems to think that this is no big deal, writing, “the law in question merely requires SCRG to tell voters how much money it spent on the election and how.” Merely. That is, it merely requires citizens to register with the state and file various, ongoing reports about their political activity, under the threat of both civil and criminal penalties, all for spending as little as $500. The burdens of these reporting requirements fall most heavily on smaller and new organizations that cannot afford to hire lawyers, consultants and accountants merely to engage in public advocacy on a pending legislative issue.

More importantly, there are many reasons why people ought not be forced to disclose their political activities to the state, and they are some of the same reasons that we vote in secret. Supporters of school choice whose kids attend public schools may fear that teachers and administrators will retaliate against their children, an uncommon but hardly unheard-of phenomenon. Citizens may fear that members of the Legislature will retaliate against them in state regulation, taxation or licensing laws. Some people simply prefer anonymity to avoid being harassed for other donations by other groups, or to avoid publicity. What is forced disclosure but a state-maintained database on citizen political activity?

For all these reasons, the U.S. Supreme Court has often recognized a right to anonymous political speech, with only a narrow exception for speech that explicitly advocates the election or defeat of a political candidate, so that voters can know who is financing a candidate (but not an issue). Less than two weeks after The State’s dismissive editorial, a special three-judge panel of the Federal District Court for the District of Columbia held that ads by Wisconsin Right to Life, remarkably similar to those run by SCRG, were constitutionally protected from regulation by the government.

This law will eventually be tested on the merits. Meanwhile, both The State and the citizens of South Carolina may wish to consider a bit more seriously than the Dec. 8 editorial whether or not they value their privacy, and whether it is the business of government to regulate the political speech and activities of its citizens.

Mr. Smith is professor of law at Capital University in Columbus, Ohio, and chairman of the nonpartisan Center for Competitive Politics. From 2000 to 2005 he served as a commissioner on the Federal Election Commission and was chairman of the commission in 2004.