Free Speech Under Attack

If we are to remain a free people, we need the foundation of the First Amendment. Free Speech guarantees every individual the freedom to express private opinions and beliefs publicly. Without public discourse and the freedom of associations, we will lose the greatest gift from our founding fathers.

Posted by on in Political Speech

South Dakota’s Measure 22 and the Dangers of Democracy

Proponents of campaign finance regulation often base their quest on a nebulous term, “our democracy.” Though undefined, it is meant to serve as a pleasant-sounding, self-evident justification for any and all forms of political speech regulation. But the latest reformist outrage against the South Dakota Legislature reveals the weaknesses of any democracy and callous disregard for the bulwarks that keep democracy in line with freedom.

Democracy is, at its core, majority rule. In purely democratic government, all eligible citizens vote on every law. This has never worked well in practice: citizens generally get hot-headed, majority rule devolves into majority tyranny, the minority revolts, and government either collapses or endures as a tyranny. To remedy this, republican government allows citizens to vote for representatives, who can devote more time to studying and deliberating over proposed laws before voting on them. Though election season is often tumultuous—itself a reflection of the dangers of democracy—when it comes time to make laws, legislators get down to business, particularly at the state level. In America we have many other safeguards, such as a bicameral legislature of both a house of representatives and a senate that must separately vote on the same bills to make a law, a feature of the federal government and most states, including South Dakota.

In the Progressive Era, as the United States expanded westward, many new states included initiative processes in their constitutions. South Dakota was, in fact, the first state to do so. This allows citizens to propose legislation that is then voted on by all eligible electors. The tradition has always had weaknesses, similar to those seen in any democracy, and South Dakota tempers this by empowering its legislature to treat an initiative as any other kind of law. That is, they can amend it or repeal an initiative entirely.

Measure 22 is an initiative that would overhaul South Dakota’s election and lobbying laws. The measure is a comprehensive bill, totaling 34 pages single-spaced, with 70 different sections, some that amend existing law and some that create new law. Last summer, Eric Wang wrote an excellent paper for the Center for Competitive Politics detailing numerous constitutional problems with the law under various free speech precedents, and even the state’s attorney general closed the measure’s summary with a warning: “If approved, the measure may be challenged in court on constitutional grounds.”

Indeed, within a month of Measure 22’s narrow passage, a judge issued a preliminary injunction to halt its implementation due to free speech concerns. (The Bill of Rights, it bears noting, also serves as an important check on democracy.)

Before the South Dakota Supreme Court rules hears the appeal, the state’s legislature is moving to repeal it entirely. Reformist interest groups like Represent Dot Us, who played a big part in writing Measure 22 and advocating for its narrow passage, are having none of this, and continue to harp on the same slogans used to pass the law, pitching “the will of the people” about as lazily as “our democracy.” Some commentators are even throwing in terms like “brazen political coup.” But this is quite the opposite. South Dakota legislators and the governor will have to face their constituents in upcoming elections—as “democratic” as republican government usually gets. They don’t seem too worried.

This brings us to the crux of Measure 22—the devil in the seldom-discussed details. If it was implemented it would not, as its proponents claim, hold politicians accountable and bolster democracy. In fact, it would threaten all facets of political participation in South Dakota—democratic, republican, or just speaking out. The measure would transform the state’s campaign finance regime into one with registration and reporting requirements that could be used to punish bloggers for not reporting the costs of their web hosting. Sound far-fetched? It already happened in Maine.  Moreover, Measure 22 would create an ethics commission, made up of appointees, with broad powers and a mission squarely tied to innovative, if dastardly, applications of the law. This is again, a prudent assumption: across the country from Maine, to Texas, to Montana, to Washington State, these commissions seldom live up to their names, and often serve as little more than busybody inquisitors who punish political participants over the pettiest violations.

Much as self-proclaimed reformers pretend red tape and political regulations with teeth are not a threat to free speech, reality is a potent force, of which South Dakota’s legislators are quite clearly aware as they repeal Measure 22 with an impressive margin. This is not to say various parts of Measure 22 should not be discussed, or even enacted, but are best undertaken issue-by-issue, or at the very least in smaller parcels than 70-section, 34-page bills. In repealing the measure, the South Dakota Legislature is not defying democracy, but acting once again as an important constitutional check against a law that, ironically, threatens the state’s democracy.

(Postscript: With all due respect to the earnestness and insight of Martin Sheen, if Represent had only put a bit of its YouTube production budget into drafting a coherent and constitutional bill, this fallout might have been avoided. Alas, the bugs of democracy—blind passions, hot air, and impulsiveness—are also features of the modern reform movement.)

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