Schedler dissent unwisely attacks free speech rights

Louisiana’s Sec. of State Tom Schedler seems all out of whack about a constitutional exercise, for reasons that don’t appear obvious or even fathomable, as the first phase of the state’s fall elections has come to a close with the remainder in full swing.

Over the past few weeks, not only in Louisiana but in many places across the country, the group Americans for Prosperity, a social welfare organization best known for gaining vigorous support from industrialists David and Charles Koch, whom the political left demonizes as the Svengalis of American politics, has been sending out postcards to some registered voters. In Louisiana, they appear to take the form of indicating whether the voter has voted in the past two national elections, while in other states reports are these also may include neighbors’ voting frequencies.

AFP has access to this information because the public does. It’s a matter of public record, and in Louisiana Schedler’s office will be glad to sell that information to anyone. Other organizations also make this information public, often through subscription services. Yet Schedler got all upset about this, fuming that “When you put [voting histories] on a postcard, I don't think that is appropriate,” and averring that he will want legislation next year to limit what can be placed on the outside of a piece of mail.

This postcard tactic appears to serve two purposes for AFP. Primarily, it dovetails with a strategy of enticing turnout of reliable, chronic voters, exploiting the “enthusiasm gap” prominent in Louisiana and elsewhere this fall that augurs disproportionately higher turnout among those likely to support conservative candidates, for which the group has sympathy, than for others. It’s a reminder to vote, which research shows can encourage turnout (especially with the promise to thank the voter with a follow-up after the election is over, which should be expected to appear soon), and apparently is sent during the early voter periods in states perhaps to stimulate that (they appear not to have been sent in Louisiana to chronic voters by mail, because they already vote early in essence).

The second use stems from AFP’s need to maintain an Internal Revenue Service section 501(c)(4) designation. By law, a social welfare organization cannot spend more than half of its resources on lobbying or campaign activities (and even if it doesn’t, it still could be subject to a proxy tax on lobbying expenses). Sending what are in essence reminders to vote does not count as a lobbying or campaigning activity, but is considered a public service just like announcements made by the media exhorting people to vote, or by organizations that profess to mobilize the electorate such as the simplistic, youth-oriented Rock the Vote. Money spent on this thereby can counterbalance that spent on campaigning for reporting purposes.

For two reasons, the group could desire to keep this status. For one, under this it may accept unlimited donations and spend without limit. But also, donors do not have to be identified, which encourages some to donate. In an era where donating to traditional organizations that campaign but which may be required by law to report all but minimal donations that can lead to violence and intimidation against these donors, exemplified by what happened to many who were against legalization of same-sex marriage in California, such protections of political liberty are valuable.

So let’s see if we can follow the logic, waterboarded at the very least if even present, in Schedler’s complaint. These are public records, which anybody can buy (or even get for free if they are willing to troop to his office or parish registrar and copy at their own expense) and can post wherever they like (the media or opposing campaigns on occasion will publicize another candidate’s frequency of voting record, for example), about which Schedler never seems have to have registered a complaint. But put it on a postcard – these are cheaper to manufacture and to mail, giving every incentive for groups to use them – and somehow it’s anathema? So certain revelations of public records are legitimate to him, but another – in a form unlikely to be seen by more than a handful of individuals – is not? Further, Schedler has chided the state’s overall turnout levels, so why would he be against something that theoretically has the effect of increasing these?

A record either is public or private; there’s no in-between. And if public, that doesn’t mean it’s qualified in whether it may be publicized in some way; as long as it shouldn’t be private, it’s fair game for any kind of publicity. Most importantly, Schedler’s suggestion that some public information be restricted in its dissemination raises severe and disturbing First Amendment questions. And it’s unclear whether Louisiana even could have any regulatory power in this instance; if any level of government would, that would seem to be the federal government that oversees the United States Postal Service that delivers these pieces.

Schedler’s suggestion not only appears to fail Constitutional muster, it’s not even good policy. If groups wants the cheapest method of sending public information to specific voters that as a result may be seen by other members of the public, there’s no compelling reason to prohibit this. Is there really enough harm in others finding out how often you vote to curtail free speech rights? I suspect about everybody but Schedler thinks not.