The South Carolina Way of Incumbency Protection


South Carolina Policy Council: By ASHLEY LANDESS

Campaign-finance laws are sold as good-government measures, but we shouldn’t forget who writes them: incumbents, who have a strong interest in staying that way. Case in point is the South Carolina legislature, which is considering a new election law that seems intended less to stop corruption than to shut down debate.

The Supreme Court has clearly ruled, beginning with Buckley v. Valeo in 1976, that campaign-finance rules may only limit speech that is “unambiguously related” to an election, and even then only to eliminate the threat or appearance of a quid pro quo. The justices ruled that lawmakers cannot put burdensome disclosure requirements on issue-advocacy groups or those focused merely on candidates’ positions and records in office.

Regulations that go further have been tossed by courts, including ones in South Carolina. In 2010 a federal court here, at the behest of a pro-life group seeking to distribute a voter guide, ruled that a section of the Palmetto State’s campaign laws was unconstitutionally broad.

Yet now lawmakers are proposing a new definition of “electioneering communication” that would include virtually any statement referencing a candidate for office made within 60 days of a general election or within 30 days of a primary. The language is broad enough to cover, conceivably, the monthly newsletters of think tanks or other watchdogs.

The bill appears to make exceptions, but they are vague and thus open to interpretation. For example, a flyer stating two county council candidates’ positions on the issues would be deemed electioneering if it “may be received” by 2,500 households. But who’s to say in how many something like this “may be received”? Under this language regulators would have the power to force watchdog groups to open their records to prove they’re not electioneering.

A group found to be electioneering would have to publicly disclose its financial supporters. No organization wants its donors subject to such invasions of privacy, which could expose them to public harassment or retaliation by powerful officials. In a state where a few politicians exercise enormous powers over all three branches of state government, that could mean real trouble for real people. If this bill is passed, many will find themselves suddenly worried about crossing some arbitrary line. They may decide it’s easier to simply keep quiet.

And that is really the point of this kind of law—not to silence the left or the right, but to silence critics of those in power. Republican lawmakers are driving the proposal, which is buried in a long and complicated “ethics” package, and Republican Gov. Nikki Haley is its biggest champion. Democratic lawmakers, meanwhile, remain quietly compliant.

South Carolina has always been a one-party state. Before 1990 it was as solidly Democratic as it is solidly Republican now. Thanks to the 1895 constitution and decades of power-grabbing, control of government belongs largely to the legislature. The executive branch is controlled through boards and commissions appointed by legislative leaders. Those leaders control judicial selection, education, road funding, public utilities and much more, yet they are accountable only to the voters in their individual districts.

That is why protected political speech is so essential. The South Carolina Policy Council, which I run, is a nonpartisan think tank dedicated to promoting limited government, free enterprise and individual liberty. We are small but outspoken. In 2013, we took a criminal complaint to the state attorney general, outlining a pattern of corruption by the Republican House speaker, Bobby Harrell. We brought together groups from the left and right to demand accountability. In October Mr. Harrell, formerly the state’s most powerful politician, pleaded guilty to criminal ethics violations.

During that two-year battle and since, lawmakers have proposed multiple ways to shut down criticism, such as forcing citizens to be sworn in to testify before public bodies and making it a crime to file a “groundless” complaint against a judge. Luckily, those measures failed.

Now lawmakers are considering a bill to define campaign speech so broadly that it would silence protected issue advocacy. The debate over campaign regulations is often viewed as an ideological one in which liberals oppose the influence of money in elections and conservatives argue for the protection of speech in politics.

As the case of Republican-dominated South Carolina amply demonstrates, however, state legislatures are happy to consider whatever regulations lawmakers think they can get away with—not for citizens’ protection but for their own.

—Ms. Landess is the president of the South Carolina Policy Council.

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