Friday, January 22, 2010

Will Marquette Allow a Free Debate on Campaign Finance?

Coming up Monday night, a debate on campaign finance reform.

We will be on the program, along with one Republican, a couple of liberal Democrats, and former D.A. E. Michael McCann, who probably also counts as a liberal.

But here is the rub: as of this writing, the Office of the General Counsel of Marquette University is worried that Marquette will jeopardize its tax exempt status by hosting the debate because two of the politicians on the program (State Representative Jeff Stone, R-Greendale and State Senator Jim Sullivan, D-Wauwatosa) will be running for reelection in the fall, presumably with an opponent.

We have been unable to reach Doug Smith in the Office of the General Counsel, the university lawyer who handles cases like this.

Steve Schultz, Marquette’s Manager of Government and Community Affairs, raised the issue with Prof. Barry McCormick (who will moderate the panel) last night. Reached earlier today for comment, Schultz made reference to a document from the General Counsel titled “Political Activities on Campus Involving Candidates for Public Office.” It reads:
Subject to specific limitations, the University may sponsor speeches, forums, question-and-answer sessions, debates, and other similar activities in an academic setting on campus at which candidates for public office may offer their insights on issues of public importance and controversies that affect the electorate and society as a whole. The purpose of such activities must be to advance the educational mission of the University. When a candidate for public office or a surrogate is provided the opportunity to speak at University-sponsored speeches, forums, debates, and other similar activities on campus, the University is obligated under these circumstances to offer comparable opportunities on campus to opposing candidates to express their views.
Apparently, this issue arose when one of the student organizations cosponsoring the event asked Student Development whether they needed to register it, and an e-mail about the event went to the Office of General Counsel and the staff of the Alumni Memorial Union.

What Are They Thinking?

This, of course, falls into the “what are they thinking?” category.

For the moment, nobody has said that the debate can’t happen, but there is talk of extending an invitation to the electoral opponents of Stone and Sullivan. This would be a rather meaningless pro forma invitation, extended in the hope it will be declined.

A tax-exempt organization like Marquette is not supposed to engage in “electioneering.” That is, more or less, fair enough. And the rules the Office of General Counsel has posted say that Marquette (as opposed to student organizations) my not sponsor “campaign events.” These are defined as “any event at which individuals are solicited to support a candidate for public office, with financial contributions, endorsements, volunteer activities, or votes.” Fair enough. But the event Monday in no way resembles a “campaign event.”

But the “equal time” rule is bizarre, and out of left field. We know of no IRS requirement that educational institutions have to offer “equal time” to different candidates. It would be fair to do so, if the candidates were giving a campaign speech. But these two candidates will not be giving campaign speeches.

Of course, one way to stifle free speech, as liberals who want to reinstate the Fairness Doctrine know, is to impose excessive burdens on it. Requiring Marquette (or a part of Marquette, like the Political Science Department which is sponsoring this debate) to rigorously include every opponent of any candidate who appears on campus would make organizing any sort of event prohibitively unwieldy.

And in a typical case, if a particular candidate is well-qualified to talk about (say) health care, there is no reason to believe that the candidate’s opponent will necessarily have anything much to say about the issue. Indeed, in some cases the opponent may be a hack with no chance of winning and nothing to say worth listening to on any issue.

The net effect would be to ban anybody running for political office from campus — at least from any event sponsored by Marquette.

Jay Heck, Executive Director of Common Cause Wisconsin who arranged the debate, noted that “we’ve been doing these forums for three years, and we’ve always had legislators and of course they’re up for election, they always are. . . . ” Heck explained that he picked Stone because he is the ranking Republican on the Campaign Finance and Elections Committee in the Assembly, and he picked Sullivan because he’s the Vice-Chair of the Campaign Finance Committee in the Senate. “They were chosen for their expertise and their activism on the issue. . . ,” said Heck.

This appears to be an example of extreme bureaucratic risk-aversion on the part of the Office of General Counsel. Given the choice of defending academic freedom or protecting against a very far-fetched hypothetical legal problem — and indeed any such “legal problem” could almost certainly be successfully fought in court — they have come down against speech.

That’s not the orientation lawyers working for a university should have.

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