What would sports look like if rules designed for campaign finance governed their play? Let’s be clear at the outset—sports are chocked full of odd and absurd rules. There’s the penalty issued against the Georgia Bulldogs when a photographer captured an assistant coach and a recruit together. Or there’s the case of Dez Bryant who was penalized because he befriended Deion Sanders. You might have a collection of your own absurd rule infractions. Now imagine if such silly rules applied to politics. They do, and they’re even worse.
Let’s step back a distance and remember that the framers of our Constitution already designed our nation’s original campaign finance reform: the First Amendment. It protects the right of citizens to speak truth to power, to hold government accountable, and to share ideas with the public. Modern campaign finance reform imposes a host of complex and absurd rules that only damage those protections.
At the writing of this post, the Wisconsin Supreme Court is considering whether secret criminal proceedings against conservative activists were justified under state election laws barring “coordination.” If you’re new to the arcane rules governing politics (campaign finance reform) you’d be surprised to know that its most basic rules remain unsettled. Even Hall of Famers—boutique DC election lawyers—sometimes can’t decide whether speech is regulated or entirely banned under them.
Used in their traditional sense, coordination rules regulate how citizens may plan “express advocacy” campaigns with candidates—figuring out where to run ads supporting, for example, a gubernatorial candidate or attacking his opponent. When this sort of planning occurs for a very specific sort of speech, the law treats it not as speech but as a monetary contribution to the candidate and imposes no shortage of regulations and limits. But these rules have never been understood to apply to ordinary meetings between individuals and elected officials about issues they care about, such as collective bargaining reform or public debt. To do so would be an exercise in absurdity as ordinary acts of association would be smothered by onerous hours of regulatory compliance.
Wisconsin’s scenario, boiled down to its essential elements, is that certain political activists met with Governor Walker and members of his campaign to discuss public issues that were hot in the state and later engaged the public about them. To certain prosecutors, this constituted a contribution to Walker’s campaign. To reach this conclusion, Wisconsin had to define prohibited coordination in a very open-ended sort of way. The definition is so open that “coordination” is defined just the way your first grade teacher told you not to—defining the word by using the word. So, helpful guidance for political activists in Wisconsin would have looked like this: “In order to protect against improper coordination, do not coordinate.” Clear now?
Naturally, states lack the authority under the First Amendment to segregate citizens from officeholders. It is an act of public virtue, not vice, to meet with politicians and to engage the public. And we use very narrowly written rules to protect against real corruption in the political process. But the Constitution does not tolerate rules so broadly written that they criminalize healthy interactions between individuals and officeholders. In sports, that would be like outlawing huddles and reaching the goal line. In politics, that means criminalizing effective engagement and advocacy.