Texas Democrats—traditionally big proponents of onerous campaign finance regulations—may be rethinking their position in light of recent Federal Election Commission rulings that could see them jailed for criticizing President Trump or other federal candidates.

Eric Wang with the Institute for Free Speech is crying foul, pointing out that the FEC’s ludicrous position violates the First Amendment. But those arguments alone won’t change the current law, which was upheld in passing by the US Supreme Court in 2002 in McConnel v. FEC.

The FEC is relying on a federal law passed as part of McCain–Feingold in 2003, 52 USC §30125(f), which states:

A candidate for State or local office, individual holding State or local office, or an agent of such a candidate or individual may not spend any funds for a communication described in section 30101(20)(A)(iii) of this title unless the funds are subject to the limitations, prohibitions, and reporting requirements of this Act.

Section 30101(20)(A)(iii) defines “Federal Election Activity” as:

[A] public communication that refers to a clearly identified candidate for Federal office (regardless of whether a candidate for State or local office is also mentioned or identified) and that promotes or supports a candidate for that office, or attacks or opposes a candidate for that office (regardless of whether the communication expressly advocates a vote for or against a candidate).

Given these definitions, the FEC has concluded that state candidates simply cannot spend money to “promote or support” or “attack or oppose” Trump or other federal candidates without risking a violation of federal law. The penalties for such violations include a stiff prison sentence:

(d) Penalties; defenses; mitigation of offenses

(1)(A) Any person who knowingly and willfully commits a violation of any provision of this Act which involves the making, receiving, or reporting of any contribution, donation, or expenditure—

(i) aggregating $25,000 or more during a calendar year shall be fined under title 18, or imprisoned for not more than 5 years, or both; or

(ii) aggregating $2,000 or more (but less than $25,000) during a calendar year shall be fined under such title, or imprisoned for not more than 1 year, or both.

The next time a Texas Democrat tries to tell voters they must turn out to “defeat Trump,” know that they are doing so in violation of explicit federal election law. They proceed at risk of FEC penalty, imprisonment, or both. It of course works the other way around as well. Texas Republicans who want to express their support for the President or even their local Congressman also take a risk to do so.

Texas Democrats (and a minority of Republican officeholders as well) are all too willing to impose election rules designed to curtail the free speech of their constituents. Now that they’ve been snared by their own trap, maybe some of them will take notice of the effects of their bad policy.

This is yet another example of how election laws at the federal and state level are dangerous, evil, and stupid. Regulations on speech are simply antithetical to a free society.

Tony McDonald

Tony McDonald serves as General Counsel to Texas Scorecard. A licensed and practicing attorney, Tony specializes in the areas of civil litigation, legislative lawyering, and non-profit regulatory compliance. Tony resides in Austin with his wife and daughter and attends St. Paul Lutheran Church.