Introduction I. The FEC's Advisory Opinion System II. Colorado: A Toothless Advisory System III. Florida: Too Many Moving Parts IV. Vermont and North Dakota: No Guidance Whatsoever V. Other States Tend to Combine One or More of These Weaknesses VI. Delaware: A New Hope Conclusion
Campaign finance law is famously complex. At the federal level, "[c]ampaign finance regulations.., impose unique and complex rules on 71 distinct entities ... subject to separate rules for 33 different types of political speech." (1) But the federal component is but one part of the overall system. Each of the fifty states, and numerous municipalities, has its own often-idiosyncratic regime.
Many areas of the law feature interlocking state and federal regulations, and sophisticated entities regularly employ legal counsel to help them navigate those requirements. But most areas of the law do not regulate activity "at the heart of the First Amendment." (2) Nor do they purport to cover unsophisticated individuals and small groups. By contrast, many state systems impose registration and reporting requirements on groups raising and spending far less than a thousand dollars. (3)
Of course, there is always the danger that civically-minded individuals will not foresee the dangers of noncompliance involved with soliciting $20 donations, (4) accepting donated materials for fliers, (5) or receiving pro bono legal advice. (6) But even where individuals or groups are aware of the need to determine and comply with local campaign finance rules, they may find that those rules are unclear or overwhelmingly complex.
This complexity poses a constitutional difficulty because "[p]rolix laws chill speech for the same reason that vague laws chill speech: People of common intelligence must necessarily guess at the law's meaning and differ as to its application." (7) This is why the Supreme Court has noted that "rigorous adherence [to the promotion of bright-line rules] ... is necessary to ensure that ambiguity does not chill protected speech." (8)
There has been substantial and controversial litigation concerning the scope and interpretation of state and federal campaign finance laws. But litigation is expensive, and not all speakers wish to bear the burdens or notoriety associated with constitutional challenges. Some--indeed most--simply wish to know what is required of them, with every intention of studiously complying with their legal duties. If they cannot gain concrete guidance, they may not speak. This is especially true given the severe penalties provided by many state campaign finance systems, and the prevalence of private rights of action (often used by political opponents), (9) which together make the costs of legal errors potentially orders of magnitude greater than the value of the original activity. (10)
At the federal level, this concern is somewhat ameliorated by the FEC's ability to provide advisory opinions. There have been hundreds of these opinions written to date. (11) An advisory opinion request, however, will not always be granted. This is because there are six commissioners, four of whom must vote to approve an advisory opinion, and no more than three commissioners may be of the same political party. (12) Tie votes on advisory opinions do occur. (13) But obtaining an advisory opinion conveys a number of advantages. Most importantly, abiding by the opinion immunizes the requester against legal liability.
The states should consider the federal system, in this instance, as a model. By creating advisory opinion mechanisms that concretely advise potential speakers as to their rights and responsibilities, state and local governments can eliminate a major constitutional infirmity: vague, unclear, and prolix statutes that do not provide adequate guidance and force risk-averse speakers to be silent.
State systems should borrow three elements from the federal model. …