Does the First Amendment allow Americans to talk about politics without any legal restrictions? A Washington state court doesn’t think so. After talk radio hosts Kirby Wilbur and John Carlson discussed their support for a ballot initiative to overturn a state gas tax, a Washington court decided that the two had contributed to the initiative campaign. Under Washington state’s Fair Campaign Practices Act, the court said, the campaign to which they contributed must file public disclosure forms with a cash value attached to their words of support.
“Public disclosure” is an odd way to describe the filing requirement, since the regulated act—speaking in favor of an initiative on the radio using your own name—is inherently self-disclosing. Although the only relief the Washington counties who sued the initiative campaign explicitly sought was the disclosure requirement, the decision would also mean, given the letter of state law, that radio hosts would not be allowed to talk about campaigns at all within 21 days of an election if their radio jabber was valued at more than $5,000.
The ruling was appealed to the Washington Supreme Court, which heard oral arguments in early June and has not yet issued its decision. During oral arguments one Supreme Court justice did remind the government’s lawyer that the state should not try to “balance” its statutory campaign finance requirements against constitutional rights.
An amicus brief from the Center for Competitive Politics noted an irony in this application of campaign finance law: Supporters of campaign finance restrictions used to argue that it was OK to regulate money in politics because money wasn’t speech. Now the Washington court seems to think it’s OK to regulate speech in politics because speech is money.