New Bill Takes Aim at Criticism of Lawmakers

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LEGISLATION WOULD REGULATE FREE SPEECH EVEN MORE TIGHTLY THAN LAST YEAR’S ‘DARK MONEY’ BILL

In its present form, S.255, sponsored by Sen. Hugh Leatherman (R-Florence), would substantially encroach on South Carolinians’ right to criticize politicians. The bill would require groups engaging in “election communication” – broadly defined as communication that supports or opposes a candidate, ballot initiative, or influences an election – to disclose not only their top donors but also the donors’ mailing address, occupation, and employer. Groups that aren’t currently required to disclose their donors, moreover, would face tougher reporting requirements at the state level than full-on political action committees that are directly involved in elections. Unlike other recent attempts to regulate free speech, which would have applied only in the run-up to an election (30 days before a primary election, 60 days before a general), Sen. Leatherman’s bill would apply all year round.

The courts have drawn a very clear line between protected political speech and political speech that “expressly advocate[s] the election or defeat of a clearly identified candidate.” As the U.S. Supreme Court concluded in Buckley v. Valeo, government’s interest in regulating political speech is related exclusively to corruption – defining “corruption” as large contributions “given to secure a political quid pro quo from current and potential office holders.”

S.255 wouldn’t protect the general public from the quid pro quo concern, and it would only protect politicians from criticism – the same politicians, incidentally, who have appointment power on the State Ethics Commission, the agency tasked with interpreting the langue of this bill. And while legal precedent would virtually guarantee a court challenge, its passage would impose a chilling effect on citizens’ and organizations’ willingness to speak out on matters of public policy.

Legislators claim the bill is modeled after a bill that withstood federal scrutiny in Montana. But the U.S. Supreme Court ruled in NAACP v. Alabama that the NAACP had “immunity from state scrutiny of membership lists” when the state of Alabama tried to force the organization to hand over its list of members. South Carolina lawmakers appear to want the same information – and for closely related reasons.

Transparency is for government; privacy is for citizens. S.255 gets this vital principle exactly wrong.

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