Cato’s latest amicus brief serves to defend the First Amendment interests of an Alaska think tank that regularly opines on matters of public policy. The ability to participate in the marketplace of ideas and express views on such matters should not require mastery of arcane and indeterminate campaign finance law. But when disclosure obligations attach to the exercise of First Amendment rights, an institutional speaker must often determine, even before it speaks, whether publishing will require registration, financial reporting, and the disclosure of the identities of its supporters. The question the case at hand raises is whether the First Amendment allows a state to impose those obligations on an organization that simply publishes discussions of public policy.

Alaska Policy Forum, a nonprofit research organization, published materials criticizing ranked-choice voting just before Alaskans considered a ballot initiative to adopt it. APF’s publications never mentioned the initiative by name. The Alaska Public Offices Commission treated them as regulated electoral communications anyway, relying on their language and timing, and found that compensated employee time was the expenditure triggering Alaska’s registration, reporting, and disclosure requirements. The Alaska Supreme Court affirmed, and Cato has now filed an amicus brief supporting APF’s petition for certiorari.

For more than 50 years, our nation’s Supreme Court has continued to narrow the means by which government may regulate political spending. Compelled disclosure itself burdens association, as NAACP v. Alabama (1958) held. And as McIntyre v. Ohio Elections Commission (1995) put it, the simple interest in providing voters with additional relevant information does not justify a requirement that a writer make statements or disclosures she would otherwise omit.

Alaska’s regime cannot be reconciled with the Court’s jurisprudence. In Buckley v. Valeo (1976), a disclosure provision reached anyone who made expenditures for the purpose of influencing a federal election. The Court held that the ambiguity of that phrase posed constitutional problems, because that phrase could encompass both issue discussion and advocacy of a political result, and construed it to reach only communications expressly advocating the election or defeat of a clearly identified candidate. McConnell v. FEC (2003) later allowed a broader category, but only because BCRA’s definition supplied criteria that were both easily understood and objectively determinable.

Alaska’s standard meets neither requirement. The State uses the label of express advocacy but defines that term by what an audience would take a communication to mean, a perspective the speaker cannot know in advance. It asks whether speech, read as a whole and with limited reference to outside events, is susceptible of no other reasonable interpretation than an exhortation to vote, and lets timing and the audience’s presumed knowledge of the ballot decide the result. The Court has twice rejected that method. Buckley declined to analyze the question in terms of intent and of effect, because that perspective would afford no security for free discussion. And in FEC v. Wisconsin Right to Life (2007), the Court rejected tests resting on the actual effect speech will have on an election or on a segment of the target audience, holding that where doubt remains, the tie goes to the speaker, not the censor.

Alaska has combined three speech-chilling features: a contextual rule for classifying speech, an expenditure definition that includes ordinary employee time, and a threshold beginning at the first dollar. Together they require a policy organization to conduct its own campaign finance analysis before publishing its own research. Vagueness, as Buckley noted, is particularly treacherous where violation carries criminal penalties. Speakers facing an uncertain boundary steer far wider of the unlawful zone. Speech is chilled even if no penalty ever issues, because the risk of a chilling effect on association is enough. Cato’s brief argues that the Court should grant the petition and reaffirm that the presence of a public question on a ballot does not diminish the freedom to discuss any issue related to it.