WSJ, Editorial Board
Home schoolers sue the regulators who want to shut them up.
One of the few remaining subjects of bipartisan comity in U.S. politics is the abuse of campaign-finance laws to protect incumbents from criticism. Well, now Texas Republicans will have to defend in federal court one such bid to shut down political speech and intimidate donors—and explain why the First Amendment supposedly stops at the steps of state legislatures.
On Friday the Texas Home School Coalition Association sued the state over an attempt to ensnare virtually all civics organizations under government control and regulate their activities. The gambit emerged from a panic in Austin over the rise of outside scrutiny and was meant to prevent the barbarians from participating in politics.
A seat in the Texas legislature was once a lifetime sinecure, but after the Supreme Court’s 2010 free-speech decision in Citizens United, what liberals and some Republicans call “dark money” started to pour into the fray. Lawmakers started to lose primaries as their positions and records were exposed to voters, so in 2013 they struck back with legislation that imposed onerous reporting and disclosure requirements on groups engaged in issue advocacy as if they were a regular political committee stumping for a candidate.
Governor Rick Perry rightly vetoed the bill, citing its “chilling effect” on speech that would undermine “our democratic political process.” So the Ethics Commission, the state’s campaign-finance regulator, decided to restrict speech on its own with no legal basis.
At the request of legislators, the Ethics Commission is reinterpreting the existing state election code to target issue-oriented groups that also take part in elections in any way, even if such campaign advocacy is a sideline to their primary mission. Under the proposed new rules, these groups must register with the state, hire campaign accountants and attorneys, and file and disclose detailed reports on contributors, spending and their beneficiaries. Violations are a criminal offense.
The Texas Home School Coalition Association argues that this attempt to burden speech is unconstitutional. The nonprofit mainly supports non-state education through parental seminars, legal aid and the like. But the association devotes about 9% of its budget in election years to producing a voter guide, promoting endorsements of candidates who support its values, and advertising its policy positions on matters of public concern at the ballot box.
Even the Supreme Court’s original campaign-finance sins, 1976’s Buckley v. Valeo and a follow-on 1986 case, explicitly protected the First Amendment rights of “organizations whose major purpose is not campaign advocacy, but who occasionally make independent expenditures on behalf of candidates.” These precedents say the government can only restrict core political speech to avoid corruption, but how can advocating for home schooling create a corrupt quid pro quo?
The real goal of the Ethics Commission and its legislator accessories is to reduce the influence of critics and expose donors to political intimidation. Here’s an opportunity to vindicate citizen participation and accountability in government, which is what politicians fear the most.