Should the Government Have Authority to Determine What a Campaign Spends Money On?

[courtesy of California Progress Report]

By Bill Cavala
A veteran of over 30 years in Sacramento

The Federal Constitution’s First Amendment prohibits the government from restricting the content of “speech”. This restriction on government was extended to the states with the 14th Amendment. The “time, place and manner” of a speech maybe subject to regulation, as can the content if it constitutes a “clear and present danger” to the public – such as “shouting fire in a crowded theater”.

In a political campaign, the court’s have recognized that “money is speech”, and that, because campaign activity is the purest form of protected expression, any proposed restriction would be subject to the strictest scrutiny. Corruption or its’ appearance may justify restrictions on contributions to corruptible politicians, but not to ballot measure efforts because the people, in a democracy, are incorruptible.

This simplified description provides a legal background for the effort of the Fair Political Practices Commission to reign in the use of campaign funds for purposes with which they disagree. The law states that campaign funds may be used for any activity reasonably related to a legislative, governmental or political purpose. It was written that way to avoid giving bureaucrats the temptation to regulate the content of campaign expenditures, to place legal restrictions on speech.

But not written carefully enough, it seems. Former G.O.P. Senator Ross Johnson, now Chair of the FPPC, has proffered a new regulation that would require “disclosure” of the “reasonable relation” between a campaign expenditure and it’s “political, legislative and governmental purpose”.

Fair enough. A little sunshine is harmless. But it won’t stop there. Because the Commission is bound to find the relation of some expenditures disclosed NOT “reasonable”. Enforcement actions will be triggered, ostensibly on disclosure, but in fact on a disagreement on how campaign funds should be legitimately used.

Such a debate is always in order. But the government lacks the constitutional authority to resolve it.

This was the traditional liberal view – challenged by conservatives who were prepared to throw away the limits on the use of government power if it got in the way of their ideological goals (the “Red” menace). Ross Johnson is such a conservative. He wrote the law that outlaws the use of mail by public officials. If interpreted as he wished, it would have eliminated the ability of the executive to communicate with his agencies except by phone. The pre-Johnson FPPC fixed the problem by defining “mail” in such a bizarre manner than only a dozen attorneys know what it means.