News has come down from on high: The newly-created Government Accountability Board has decided that they should be in charge of what people can and can’t say during elections. Apparently, they believe it is in the public’s best interest for an unelected board to limit political speech to save us all from democracy. Or, they just want to shut down Fairsley Foods:
When legislation authorizing the GAB was initially passed, there was concern that the Board’s powers may be too broad. It is now clear that those concerns were well-placed. Note the Board’s “duties” as described by the Legislative Council:
Act 1 creates two divisions in the GAB, each of which is under the direction and supervision of an administrator appointed by the GAB: the Ethics and Accountability Division and the Elections Division. The former has responsibility for administering campaign financing, lobbying, and ethics laws. The latter has responsibility for the administration of election laws.
[…]
The GAB is required to investigate violations of laws it administers and may prosecute, by its legal counsel or a special prosecutor, alleged civil violations of those laws. Alternatively, it may refer prosecution of alleged civil violations to the appropriate district attorney (which is the same prosecutor authorized to prosecute criminal violations).
Note anything missing there? Clearly, the GAB has the authority to prosecute existing laws that candidates violate, or ship them off to a district attorney for action. Yet the GAB has no authority to just make up new laws of their own to enforce. Those powers still rest with the Legislature, as explained in the article by Attorney Mike Wittenwyler:
Mike Wittenwyler, a lawyer who represents groups that sponsor issue ads, defended the ads as discussing public policy matters rather than candidates and said there ‘s no need to change the current rules. But he said that if the board makes changes, they must comply with state and federal court rulings.
Wittenwyler also questioned whether the board even has the authority to regulate issue ads, saying that ‘s the Legislature’s job.
Under the original bill, the GAB is allowed to issue advisory opinions, but states that “each advisory opinion issued by the board must be supported by specific legal authority under a statute or other law, or case or common law authority.” Needless to say, there is no current laws that deems the GAB the “speech police.”
Basically, the Board sees TV ads that they don’t like, and authority be damned, they want to do something about it. This smacks of the same outcome-based reading of the law that centers around the current Supreme Court race.
What’s even more troubling is how little credit this unelected board gives voters. They think that voters just must see these TV ads, not recognize them as typical attack ads, and swallow the whole thing hook line and sinker. They think the typical voter has just fallen off the proverbial turnip truck. (My apologies to anyone who actually has fallen off a turnip truck for the use of this insensitive metaphor.)
I will grant that these ads do have some effect. Otherwise, campaigns and third parties wouldn’t spend the kinds of dough they do to run them. But how much effect is really in question. It’s pretty clear that people who would most likely be affected by the message (those who know nothing about campaigns and politics) would be the least likely to vote. In some instances, voters might actually turn away from a candidate who runs an ad they deem to be inaccurate or repulsive. It’s impossible to measure the backlash.
Nobody likes negative campaign ads. But if the First Amendment exists for anything, it is to protect unpopular speech. Notice that nobody’s proposing a board to regulate praise of Brett Favre in Wisconsin. The only acceptable remedy for objectionable speech is more speech, not shutting it down altogether.
(Note: I see that Chris Lato makes a similar point today in this column.)
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