06/15/2014
In May 2014, New York State enacted this "emergency" regulation governing how issue advocacy is treated. The regulation pulls New York away from the Supreme Court's standards, and towards a view that expands the amount of political speech that will be regulated in the state. It will also force more disclosure of donor lists -- a power we have seen abused by the federal Internal Revenue Service.
The Center for Competitive Politics has submitted a comment on the regulation. The CCP urges New York to re-examine the regulation in light of "unforeseen constitutional and practical consequences of these changes to New York campaign finance law. Constitutionally problematic legislation or regulation may be of particular concern to the State, as it may trigger costly, time-consuming litigation.
"CCP’s most significant concern with the Regulations stems from their tendency to increase, rather than limit, vagueness regarding what speech qualifies as an independent expenditure. State law requires those making independent expenditures to register as political committees and file detailed campaign finance reports.[2] Given these burdens, the standard for determining what speech qualifies as an independent expenditure is particularly important.
"But rather than clarifying what expressive activity will trigger these (not insubstantial) requirements, the Regulations make it significantly more difficult for speakers to determine, in advance, whether their desired speech will be an independent expenditure. Instead, they abandon the pre-Regulation law’s crisp standard—which is firmly rooted in United States Supreme Court precedent—and replace it with a vague, amorphous test that chills speech and vests state bureaucrats with significant discretion to sanction speech after the fact."
Read CCP's entire comment here.
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