Intended to regulate spending by independent groups during campaign season, the regulations are so expansive that almost anyone, citizen or organization, hoping to have their say on any issue could find themselves in bureaucratic dire straits.
Imagine you hear a radio ad where your state representative — let’s call him Fred — claims to oppose higher taxes. But you know that Fred voted three times for higher taxes.
Outraged, you print up 500 flyers with a picture of Fred, a copy of his voting record on taxes and a brief statement about how you think your neighbors should know the truth.
You hand out these flyers at your son’s Little League game, your daughter’s soccer practice and in front of the grocery store while your husband is shopping.
While most would applaud you for performing your civic duty and educating the public about a dishonest politician, the New York State Board of Elections could now fine you at least $1,000.
Why? Because you failed to register as a political committee, complete the appropriate paperwork for filing an “independent expenditure,” list your donors and your treasurer and provide copies of your flyer to the board for its stamp of approval.
And, unfortunately for you, one of Fred’s campaign staffers saw your flyer and reported you to the authorities.
This, sadly, is just the tip of the regulatory iceberg. These new rules give the board unprecedented say in determining if speech is supporting or opposing a candidate.
Is an ad for a charity that supports war veterans advocating for a candidate who is also a war vet? Is an AARP pamphlet opposing higher prescription-drug prices under ObamaCare opposing every candidate who supports New York’s state-run insurance marketplace?
What about billboards for a local gun show that say, “Support the Second Amendment” — are those attack ads against all pro-gun control candidates?
Under the new regulations, these decisions are left entirely to the discretion of the four unelected commissioners on the Board of Elections.
And the rules are so unclear that there is no way for New Yorkers to know the answers to these questions in advance. The board has full discretion to decide whose ads are acceptable and who to throw the book at.
As the recent IRS scandal has made abundantly clear, government bureaucrats can’t fairly assess what groups have the right to speak. The opportunity for politically malicious prosecutions in New York will be rampant.
For nearly four decades, courts have consistently discarded as unconstitutional such haphazard definitions of political speech.
If the board’s new regulations become permanent, they will undoubtedly face similar court challenges.
Ultimately, the courts will quash the rules, as they have New York’s past efforts to squelch independent political speech.
But in the meantime, while the state squanders taxpayer dollars on litigation, these regulations will prevent individuals and organizations from delivering their message to the public.
The rules are so convoluted that even sophisticated lawyers won’t be able to give clear guidance on what is permitted and what is not. This is especially the case for smaller groups with less experience, less access to regulators and less money to hire the necessary lawyers.
The end result? Politicians can worry less about taking actions that might offend their constituents, because fewer amateurs will be able to speak out against crony deals, crummy tax laws, environmental problems and innumerable other bad policies.
That may be great news for incumbents, but it is terrible news for New Yorkers who want a free and open democracy.
The most important aspect of the First Amendment is embodied in these citizen groups — the little guy who is willing to speak truth to power.
At the Board of Elections, however, those in power clearly aren’t interested in hearing from those speaking the truth.
Scott Blackburn is a research fellow at the Center for Competitive Politics.