To read the full 50 State Survey, click here.

Introduction

The laws in the United States regulating speech about government are enormously complex, especially for such a niche area of the law. As the Supreme Court has noted, the federal law regulating campaign speech (so-called “campaign finance” law) alone consists of “568 pages of regulations, 1,278 pages of explanations and justifications for those regulations, and 1,771 advisory opinions since 1975.”^[1] This does not even include the nearly 100 pages of statute, and the separate body of law regulating speech about legislative and administrative matters (so-called “lobbying” law). Add to this the reality that each state and many municipalities have their own laws regulating speech pertaining to state and local candidates and government, and the complexity of this body of law explodes more than 50-fold.

The Institute for Free Speech (“IFS”) has reviewed the laws in all 50 states, the District of Columbia, New York City, and Seattle regulating speech about government to determine how much of a regulatory burden each jurisdiction imposes on this core First Amendment activity. The following analysis examines each state’s laws according to 12 major issues (several of which are comprised of multiple sub-issues) that are regulated under this area. This analysis is current with state law as of March 2018. Since states are continuously adding to and amending their statutes, it is likely that some of the statutes referenced in this analysis have changed.

Please note that this survey focuses on each state’s statutes and does not consider any potentially applicable regulations, agency advisory opinions, or court decisions that may have impacted the relevant statutes. This high-level treatment is deliberate. The average person or organization simply does not have the resources to analyze all of those other authorities, and “[t]he First Amendment does not permit laws that force speakers to retain a campaign finance attorney” to determine whether and how they may speak.^[2] Rather, statutes regulating speech about government should speak for themselves; they should be clear on their face in “giv[ing] the person of ordinary intelligence a reasonable opportunity to know” how his or her speech will be regulated.^[3] If laws are affected by court rulings, government should revise the laws accordingly.

IFS hopes this document will help inform members of the public and state policymakers about complex and onerous laws burdening political speech. By revealing comparative information on not only how the states compare with each other, but also on how a given state regulates various issues pertaining to speech about government, this document may provide a useful guide to public interest organizations and policymakers on how to focus their legislative and litigation efforts to implement true reform in our political speech laws.

For groups looking to speak about issues and campaigns in their state, this document can also serve as reference to each state’s law for the speech they might be considering. Before anyone speaks on political issues, however, it is wise to consult an attorney to provide definitive guidance for any planned communications.

What follows are brief descriptions of the 12 major issues covered by this survey and explanations of their significance to freedom of speech.

Major Issues

1) False Political Speech Laws – The first issue reviews whether a state has a law purporting to regulate false speech about elected officials and candidates. Such laws chill and punish speech because they invite politically motivated complaints and place speakers at the mercy of government officials in determining whether speech concerning candidates and government is “true” or “false.”

These types of laws have been held unconstitutional in some states and are likely unconstitutional across the board. However, the Supreme Court has not issued a categorical ruling on their merits.^[4] Thus, to the extent these laws remain on the books in many states, they impose uncertainty and risk for speech about government and candidates.

2) “Expenditure”/“Express Advocacy” Definitions – The second issue covers how a state defines a campaign “expenditure” – a term of art under the campaign finance laws that triggers an array of regulatory burdens. At a minimum level, a communication that constitutes an “expenditure” typically will require a prescribed disclaimer. Making an “expenditure” also may require a public report to be filed (which in many cases may require public reporting of donors, including the exposure of individuals’ personal address and employment information). At the most invasive level, making “expenditures” also may require the speaker to register and file ongoing reports as a political committee (or “PAC”) and publicly report donors (if the speaker is an organization).

When expenditures are defined broadly, more speech is covered by the definition. When the regulatory burdens for making those expenditures are great, it is necessarily the case that individuals and groups are less likely to speak, and when they do, they are more likely to unknowingly run afoul of these statutes.

Thus, how precisely a state defines an “expenditure” is crucial. The most precise standard that imposes the fewest burdens on campaign speech is known as the “Buckley express advocacy” standard, which is rooted in the Supreme Court’s landmark decision in Buckley v. Valeo, 424 U.S. 1, 44 n.52 (1976). Only “communications containing express words of advocacy of election or defeat, such as ‘vote for,’ ‘elect,’ ‘support,’ ‘cast your ballot for,’ ‘Smith for Congress,’ ‘vote against,’ ‘defeat,’ [or] ‘reject,’” are regulated under this standard. Id.

IFS also considers the standard articulated in FEC v. Massachusetts Citizens for Life (“MCFL”), 479 U.S. 238 (1986), to fall within the Buckley standard. The MCFL standard essentially represents the principle of transitivity, under which certain candidates are identified with a label (such as “pro-life”), and then Buckley express advocacy language is applied to candidates with that label (e.g., “vote for ‘pro-life’ candidates”).

A broader standard is known as the “functional equivalent of express advocacy standard.” Speech is regulated under this standard “only if [it] is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” Wisconsin Right to Life v. FEC, 551 U.S. 449, 469-470 (2007). The problem with this standard is that regulators making the judgments are often unreasonable when they apply it, leaving a great deal of uncertainty for speakers.

An even broader “expenditure” definition is known as the Furgatch standard, which the U.S. Court of Appeals for the Ninth Circuit articulated in FEC v. Furgatch, 869 F.2d 1256 (9th Cir. 1989). The FEC purports to have implemented this standard in 11 C.F.R. § 100.22(b). Under this standard, speech is regulated if:

When taken as a whole and with limited reference to external events, such as the proximity to the election, could only be interpreted by a reasonable person as containing advocacy of the election or defeat of one or more clearly identified candidate(s) because –

• • • The electoral portion of the communication is unmistakable, unambiguous, and suggestive of only one meaning; and
    • Reasonable minds could not differ as to whether it encourages actions to elect or defeat one or more clearly identified candidate(s) or encourages some other kind of action.

11 C.F.R. § 100.22(b).

Some states may apply a standard similar to the Furgatch/100.22(b) standard only during certain pre-election time windows, while other states may apply the standard year-round.

Other states’ “expenditure” definitions may be even broader than the Furgatch standard.

3) “Electioneering Communication” Laws – The third issue captured in this survey considers whether and how a state regulates “electioneering communications” (“ECs”). An EC is generally understood as a communication that refers to a candidate or elected official up for re-election that is made within certain pre-election time windows. EC laws generally deem such speech to be “electioneering,” even if the speech is an attempt to influence and call public attention to a policy or governmental issue.

Electioneering communications statutes are highly likely to capture and regulate genuine speech about issues of public importance, or what is more commonly known as issue advocacy. By regulating a broad swath of issue speech and imposing extensive burdens on such speech, EC laws sharply reduce the amount of First Amendment activity that groups are likely to engage in. Further, since the activity regulated by ECs is usually broader than a state’s expenditure definition, groups are more likely to accidentally violate EC statutes with their communications. Such instances reduce the likelihood of future speech.

Unless covered by an exemption, unbiased and nonpartisan informational voter guides also may be captured as ECs. Like the federal EC law, some states may limit the reach of such laws to some extent by applying them only to communications that target the relevant electorate, although oftentimes this merely coincides with elected officials’ constituents.

Some states use the term “electioneering communication,” but define it as the functional equivalent of express advocacy or something similar (see #2 above). Other states may not use the term “electioneering communication,” but have laws that function as EC laws by regulating speech referencing candidates within certain pre-election time windows. Yet other states treat mere references to candidates within certain pre-election time windows the same as express advocacy expenditures.

Like the “expenditure” definition, speech deemed to be an EC may trigger burdensome disclaimer and reporting requirements, including donor information, that would-be speakers should be aware of.

4) Independent Expenditure Donor Reporting Requirements for Non-PAC Entities – The fourth issue surveys whether and how organizations that sponsor independent expenditures (“IEs”) that are not political committees (“PACs”) are required to report donors. IEs are generally understood as campaign expenditures (see #2 above) made by independent groups that are not coordinated with any candidates (including their campaign committees and other agents) or political party committees.

Requirements to identify donors on IE reports pit the asserted governmental interest in knowing who is funding speech about government against donors’ right to associational privacy.^[5] The Supreme Court also has held that “independent expenditures … do not give rise to corruption or the appearance of corruption.”^[6] Thus, the justifications for sponsors of IEs to publicly report their donors are more attenuated than the requirement for PACs (discussed more below in #7 and 8) to report their donors. Nonetheless, most states that require reporting of IEs require some level of donor reporting. IE reporting laws for non-PAC entities are generally not as burdensome as reporting requirements for PACs. However, some states do not distinguish between IE reporting and PAC reporting and treat sponsors of IEs as either full-fledged PACs or “incidental committees” (discussed more below in #9).

Reporting requirements, particularly donor identification requirements, dissuade groups from engaging in speech by increasing the threat of harassment to donors, creating regulatory headaches for would-be speakers, and making it harder to fundraise by infringing upon individuals’ right to privacy in association.

5) Disclaimer Requirements for Independent Expenditures and Electioneering Communications – The fifth issue looks at the disclaimer requirements a state imposes on IEs and ECs. Disclaimers are viewed as a form of disclosure on the face of a regulated communication that complements the reporting requirements.^[7] At a minimum, a disclaimer typically requires a statement identifying the name of the person or organization who is responsible for a regulated communication. Lengthier disclaimers may require contact information for the communication’s sponsor, and a statement regarding whether the communication is authorized by a candidate. A few jurisdictions even require disclaimers to provide information about an organization’s largest donors.

Such requirements may prescribe not only the content of disclaimers, but their form (e.g., audio, visual, size, color, placement, and length specifications). The lengthier and more complex and invasive a disclaimer requirement is, the more it burdens speech, the more likely a speaker is to inadvertently violate the law, and the more it cuts into the speaker’s ability to present his or her own message. This is especially so in media that are subject to time or space restrictions. Disclaimers that require donor information also amplify all of the risks of general donor identification (see #4) by publicly broadcasting that information with every communication. This further dissuades speakers from engaging in political speech.

6) Statutory or Regulatory Authority for Super PACs – The sixth issue explores whether a state’s statutes recognize super PACs. A “super PAC” is a PAC (discussed more below in #7 and 8) that does not make contributions to candidates or political party committees, but rather exists primarily to sponsor independent expenditures. Because super PACs only make independent expenditures (see IE reporting, #4 above), they are not subject to the typical amount limitations and source prohibitions on the contributions they may accept.

Relying on the Supreme Court’s reasoning in Citizens United, a 2010 U.S. Court of Appeals for the D.C. Circuit decision^[8] and subsequent Federal Election Commission advisory opinions^[9] recognized super PACs at the federal level. Subsequent to the D.C. Circuit ruling, states have generally followed suit in recognizing super PACs, whether by advisory opinions, federal or state court rulings, or by legislative changes. Some states have essentially always allowed for super PACs, even prior to the advent of super PACs at the federal level, by allowing unlimited contributions from any sources to a PAC.

Because legal recognition for super PACs is clearest when it is codified into statute, IFS reviewed each state’s statutes for this issue. By not formally recognizing super PACs, states run the risk of limiting First Amendment activity from groups that might want to become super PACs, particularly speakers with less expertise in campaign finance law.

7) Major/Primary Purpose for PAC Status – The seventh issue reviews whether a state regulates political committees (or “PACs”) based on “the major purpose” of an organization. Pursuant to U.S. Supreme Court decisions and decisions in other courts, a PAC is generally understood as an organization that accepts contributions and makes expenditures, and has “the major purpose” of nominating or electing candidates.^[10] As discussed above (see #4), this standard is important because it generally protects organizations that occasionally engage in political speech from the more extensive reporting burdens that apply to PACs.

Not all states and courts have followed the Supreme Court’s “major purpose” formulation^[11] (also known as “primary purpose” or “principal purpose” in some jurisdictions). Some jurisdictions allow a group to be regulated as a PAC if nominating or electing candidates is simply “a major purpose” of an organization – meaning that the electoral activity does not need to be more than half of the group’s activities or spending, but merely some significant yet unspecified part. Other jurisdictions have imposed no meaningful limitation on their PAC definition, such that PAC status may be triggered merely by crossing some dollar threshold in spending on electoral activity.

When states expand the PAC status definition beyond the major purpose test, they necessarily capture a larger group of speakers and potential speakers. When more speakers are regulated, the burdens of speech become higher and groups are less likely to exercise their First Amendment rights (see #4).

8) PAC Status Determination and Thresholds – Related to #7 above, the eighth issue explores how PAC status is triggered in each state. Generally, PAC status is triggered by accepting “contributions” and/or making “contributions” and/or “expenditures,” as those terms are defined in each state. However, some states may have a broader or vaguer standard for what triggers PAC status. If a state’s “major purpose” standard (see #7 above) is thought of as consisting of a numerator (the electoral activities potentially triggering PAC status) and a denominator (the group’s activities as a whole), these triggers also will generally factor into the “numerator” of the major purpose analysis

In addition, this section looks at the dollar threshold for the regulated activities that trigger PAC status, as well as the threshold at which a donor to a PAC must be publicly reported, and whether a donor’s employer information also must be reported.

All of these regulatory burdens hamper and chill speech and impair donors’ right to associational privacy by increasing the cost of speaking (in terms of time, money, and risk).

9) Regulation of “Incidental Committees” – The ninth issue evaluates whether a state explicitly regulates “incidental committees” (which may be known by other terminology in some states) separately from the state’s “major purpose” standard in its PAC definition (see #7 above). Definitions of “incidental committee” and like terms vary dramatically from state to state, but generally capture groups whose activities only tangentially relate to campaign activity. Like the PAC laws, “incidental committee” statutes generally impose burdensome registration and/or reporting requirements on organizations that only occasionally engage in speech about government.

10) Private Enforcement Actions – The tenth issue assesses whether a state outsources to private citizens the enforcement of its laws regulating speech about government. State regulatory and enforcement agencies are far from ardent defenders of free speech. However, in practice, states with private enforcement actions fare even worse when it comes to burdens on speech. Private complainants often file politically motivated actions or, due to the complexity of the laws, actions based on misunderstandings of the law. Such actions frequently also fail to distinguish between significant and trivial violations and impose great costs on the speakers who have to defend against them.^[12]

The net result of these private enforcement actions is to limit speech and association by increasing the risk of a private party filing a complaint against a speaker. Such complaints consume an individual’s or organization’s resources and often put speakers at the mercy of unaccountable private parties.

11) Coordination – The eleventh issue surveys how a state determines when speech by private persons and organizations is coordinated with an elected official or candidate. Under the campaign finance laws, coordinated speech is regulated as an in-kind campaign contribution to an elected official or candidate and, where applicable, subject to spending limits and source prohibitions.

While the purpose of coordination laws is generally to maintain independence between campaigns and independent groups, these statutes far more often enable First Amendment restrictions.

Overly broad coordination laws go beyond regulating activities that directly and unmistakably advocate for a candidate’s election. Instead, they prevent advocacy and civic groups from discussing positive and negative developments in government or policy proposals with elected officials and candidates and then acting to raise the public’s awareness of such developments or ideas. The wide dissemination of information about governmental functions and issues of public concern is essential to representative government. Precise and narrowly tailored coordination laws protect organizations’ ability to inform the public of what their government is doing or should be doing.

12) Lobbying – The last issue in this survey covers how a state regulates “lobbying,” with an emphasis on so-called “grassroots lobbying.” The right to petition the government is enshrined in the First Amendment, but government officials have recharacterized and regulated such speech as “lobbying.” Lobbying laws require individuals and organizations engaged in petitioning the government to register and file reports of their activities. Like the campaign finance laws, some states’ lobbying laws also require organizations to publicly report their donors.

In addition, many states go beyond regulating direct contacts made by individuals and organizations with government officials. “Grassroots lobbying” laws regulate exhortations for members of the public to contact officials about governmental and policy.

By creating extensive and often arbitrary obstacles to engaging with lawmakers, overly burdensome lobbying laws inhibit citizens and civic and advocacy groups from exercising their right to petition the government and encouraging their fellow citizens to do the same.

To read the full report, click here.

^[1] Citizens United v. FEC, 558 U.S. 310, 334 (2010). The number of advisory opinions has increased in the subsequent eight years.

^[2] Id. at 324.

^[3] Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).

^[4] See Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334 (2014), on remand, 45 F. Supp. 3d 765 (S.D. Ohio 2014), aff’d 814 F.3d 466 (6th Cir. 2016).

^[5] See Eric Wang, “Staring at the Sun: An Inquiry into Compulsory Campaign Finance Donor Disclosure Laws,” Cato Institute Policy Analysis No. 829. Available at: https://www.cato.org/publications/policy-analysis/staring-sun-inquiry-compulsory-campaign-finance-donor-disclosure-laws (December 14, 2017).

^[6] Citizens United, 558 U.S. at 314.

^[7] See, e.g., McConnell v. FEC, 540 U.S. 93, 231 (2003).

^[8] SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010).

^[9] Adv. Op. Nos. 2010-09 (Club for Growth) and 2010-11 (Commonsense Ten).

^[10] See FEC v. Massachusetts Citizens for Life. Inc., 479 U.S. 238, 252-53 (1986); Buckley, 424 U.S. at 79; see also, e.g., Free Speech v. FEC, 720 F.3d 788, 797 (10th Cir. 2013).

^[11] See Corsi v. Ohio Elections Comm’n, 984 N.E.2d 29 (Ohio 2013), cert denied 134 S. Ct. 163 (2013).

^[12] See, e.g., Holland v. Williams, Case No. 1:16-cv-00138 (filed Jan. 20, 2016 D. Colo.).