Maryland's Political Speech Ban Bills

There is something profoundly unsettling about elected officials using the political process to stifle free speech about the political process. Unfortunately, a recent batch of bills introduced in the Maryland legislature seeks to do precisely that.

Political speech bans introduced in the Maryland House of Delegates this session include: HB 616, HB 690, HB 917, HB 986, HB 1087, and HB 1251. These legislative proposals run the range from bans on independent expenditures for public contractors, to forced-speech disclaimer requirements, to taxpayer-financed political campaign programs with “rescue funds” for less successful candidates, to bans on corporate political campaign contributions, and to requirements that shareholders explicitly authorize political spending. In particular, both HB 917 and HB 1251 ban corporate political contributions, and appear to allow unions to make such contributions.

Many of these bills are clearly contrary to principles laid down by U.S. Supreme Court precedents, and others are likely unconstitutional by a reasonable application of those precedents. Buckley v. Valeo (1976), for instance, bars government restrictions on independent political expenditures. Davis v. Federal Election Commission (2008) prohibits "rescue funds" designed to give public funding to electoral candidates whose opponents whose private spending exceeds a certain amount.

And the recent Citizens United v. FEC (2010) struck down speech restrictions based on speaker identity. In that case, the Court reiterated that the worth of speech doesn’t depend on the speaker’s identity, regardless of whether it’s a corporation, union, or an individual. Rather, the Court concluded that the First Amendment prohibits "restrictions distinguishing among different speakers, allowing speech by some but not others," because "restrictions based on the identity of the speaker are all too often simply a means to control content." (I discussed the case at some length in my FSF Perspectives piece "What Citizens United Means for Free Speech in the Digital Age").

To the extent these bills are part of elected officials' pushback against the Citizens United ruling – which struck down as unconstitutional bans on independent political contributions by profit and not-for-profit corporations as well as unions – the are ill-advised and ultimately futile. The wheels were already coming off the restrictions on independent political contributions when last year the U.S. Solicitor General told the Supreme Court that the federal government could ban books under the law. Or e-books. (Directly at issue in the case were speech restrictions applied to a movie.)

Political campaign finance restrictions also make far less sense in a world where websites, blogs, YouTube, Podcasts, and other forms of new media allow public and private individuals and associations to reach a far wider audience than every before with little to zero barriers to entry into the political speech marketplace.

One must also point out the absurdity of using taxpayer dollars in a time of recession and budget shortfalls to pay for political campaign speech. Is that really such a priority?

Most important of all, limits on government power to restrict speech are grounded in the U.S. Constitution's First Amendment. The issue here isn't so much about giving corporations a right to freedom of speech; it's really about consistently limiting the powers of government to ban speech by individuals or by associations of individuals however constituted—as corporations, non-profits, unions, or other organizational forms. Political speech bans adopted under the guises of campaign finance limits stifle public criticism of current office holders and also help tilt the field toward incumbents up for re-election. The First Amendment was enacted to help ensure the right of citizens to criticize the government. And that same First Amendment will stand in the way of legislative attempts to squelch that right.