SPEAKERS CONTENTS INSERTS
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62–492
2000
FIRST AMENDMENT AND RESTRICTIONS ON POLITICAL SPEECH
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
MAY 5, 1999
Serial No. 49
Printed for the use of the Committee on the Judiciary
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For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR S. SMITH, Texas
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
MARY BONO, California
SPENCER BACHUS, Alabama
JOE SCARBOROUGH, Florida
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JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
THOMAS E. MOONEY, SR., General Counsel-Chief of Staff
JULIAN EPSTEIN, Minority Chief Counsel and Staff Director
Subcommittee on the Constitution
CHARLES T. CANADY, Florida, Chairman
HENRY J. HYDE, Illinois
ASA HUTCHINSON, Arkansas
SPENCER BACHUS, Alabama
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BOB GOODLATTE, Virginia
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
LINDSEY O. GRAHAM, South Carolina
MELVIN L. WATT, North Carolina
MAXINE WATERS, California
BARNEY FRANK, Massachusetts
JOHN CONYERS, Jr., Michigan
JERROLD NADLER, New York
CATHLEEN CLEAVER, Chief Counsel
BRADLEY S. CLANTON, Counsel
JONATHAN A. VOGEL, Counsel
PAUL B. TAYLOR, Counsel
C O N T E N T S
HEARING DATE
May 5, 1999
OPENING STATEMENT
Canady, Hon. Charles, a Representative in Congress from the State of Florida, chairman, Subcommittee on the Constitution
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WITNESSES
Bonifaz, John C., Executive Director, National Voting Rights Institute
Bopp, James, Jr., Esq., General Counsel, James Madison Center for Free Speech
Briffault, Richard, Columbia Law School
Mason, David M., Commissioner, Federal Election Commission
Moramarco, Glenn J., Senior Attorney, Brennan Center for Justice, New York University School of Law
Murphy, Laura W., Director, American Civil Liberties Union, Washington Office
Pilon, Roger, Director, Center for Constitutional Studies, CATO Institute
Remcho, Joseph, Esquire, Remcho, Johansen & Purcell
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Bonifaz, John C., Executive Director, National Voting Rights Institute: Prepared Statement
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Bopp, James, Jr., Esq., General Counsel, James Madison Center for Free Speech: Prepared Statement
Briffault, Richard, Columbia Law School: Prepared Statement
Mason, David M., Commissioner, Federal Election Commission: Prepared Statement
Moramarco, Glenn J., Senior Attorney, Brennan Center for Justice, New York University School of Law: Prepared Statement
Murphy, Laura W., Director, American Civil Liberties Union, Washington Office: Prepared Statement
Pilon, Roger, Director, Center for Constitutional Studies, CATO Institute: Prepared Statement
Remcho, Joseph, Esquire, Remcho, Johansen & Purcell: Prepared Statement
APPENDIX
Material submitted for the record
FIRST AMENDMENT AND RESTRICTIONS ON POLITICAL SPEECH
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WEDNESDAY, MAY 5, 1999
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to call, at 2:15 p.m., in Room 2237, Rayburn House Office Building, Hon. Charles Canady [chairman of the subcommittee] presiding.
Present: Representatives Charley T. Canady, Asa Hutchinson, Bob Goodlatte, Bob Barr, William L. Jenkins, Melvin L. Watt, Maxine Waters and Barney Frank.
Staff present: Cathleen Cleaver, Chief Counsel; and Bradley S. Clanton, Counsel; Susana Gutierrez, Clerk and Anthony Foxx, Minority Counsel.
OPENING STATEMENT OF CHAIRMAN CANADY
Mr. CANADY. The subcommittee will be in order.
Good afternoon. Thank you all for being here. I apologize for the delay in the commencement of the hearing.
The right of the American people to freely express themselves on matters of politics and government has long been considered one of our most fundamental freedoms. Indeed the freedom to discuss public issues has been described by the Supreme Court as, and I quote, ''integral to the operation of the system of government established by our Constitution.'' As Justice Cardozo once wrote, the ''[f]reedom of expression is the matrix, the indispensable condition of nearly every other form of freedom.''
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Despite the special protection afforded political expression by the first amendment, recent legislative proposals would restrict political speech in order to reform a campaign finance system that some believe is not working. Reports of illegal and abusive fund-raising practices during recent elections have given additional momentum to these proposals.
The purpose of this hearing is not to examine the details of any specific campaign reform proposals. As I have said at previous hearings on political speech and campaign finance reform, the Committee on House Oversight has primary jurisdiction over the issue of campaign finance reform. It is, however, appropriate for this subcommittee to consider the impact of legislative proposals on our constitutionally protected freedoms.
To that end, the purpose of today's hearing is to establish the legal framework within which the constitutionality of campaign finance reform proposals must be analyzed under the first amendment and to consider whether the various types of reform proposals encroach upon the freedoms of expression and association. The Supreme Court outlined the relevant first amendment framework in Buckley v. Valeo. The Buckley Court held that campaign contributions and expenditures are forms of political expression and association and are therefore entitled to the highest degree of protection under the first amendment. Restrictions on these activities are permissible only if they further a compelling governmental interest and are narrowly tailored to serve that end.
In the course of striking down several campaign finance reform measures in that case, the Buckley Court explained that ''[i]n the free society ordained by our Constitution, it is not the Government, but the people, individually as citizens and candidates, and collectively as associations and political committees who must maintain control over the quantity and range of debate on public issues in a political campaign.''
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It is imperative that we keep this principle of liberty in mind as we engage in this important discussion. It is also crucial to remember that our good intentions do not permit us to ignore the constitutional limitations on our legislative authority. As Justice Scalia once wrote, and I quote him at some length here, ''governmental abridgement of liberty is always undertaken with the very best of announced objectives (dictators promise to bring order, not tyranny), and often with the very best of genuinely intended objectives. (zealous policemen conduct unlawful searches in order to put dangerous felons behind bars.) The premise of our Bill of Rights, however, is that there are some things—even some seemingly desirable things—that government cannot be trusted to do. The very first of these is establishing the restrictions upon speech that will assure 'fair' political debate.''
That is the end of the quotation from Justice Scalia.
With these principles in mind, I look forward to hearing the testimony of each of the witnesses who will testify today.
Mr. Jenkins, do you have anything you want to say?
Mr. JENKINS. Thank you, Mr. Chairman. I do not have an opening statement. I am sorry if I delayed the committee, but——
Mr. CANADY. You are the only reason we are going now.
Mr. JENKINS. I was working diligently——
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Mr. CANADY. You have expedited us.
Mr. JENKINS [continuing]. In another subcommittee of this same committee——
Mr. CANADY. I want to thank you.
Mr. JENKINS [continuing]. Just up the hallway.
Mr. CANADY. I appreciate that. And I realize the members of the subcommittee—the Judiciary Committee are very busy today. We have been very busy over the last couple of weeks, and Members have many commitments. I thank Mr. Jenkins for taking the time to leave another meeting and be here so that we could begin the hearing. I appreciate that very much.
We will now go to our panel of witnesses. Our first witness this afternoon will be Commissioner David M. Mason of the Federal Election Commission. Commissioner Mason was nominated to the Federal Election Commission by President Clinton on March 4, 1998, and confirmed by the U.S. Senate on July 30th, 1998. Prior to his appointment, Commissioner Mason served as a Senior Fellow in Congressional Studies at the Heritage Foundation. Commissioner Mason also served as Deputy Assistant Secretary of Defense during the Bush Administration.
Following him, will be Ms. Laura W. Murphy, who serves as Director of the American Civil Liberties Union, Washington, D.C., office. Ms. Murphy directs the legislative and executive branch civil liberties agenda for the national organization. In addition to directing the Washington office, Ms. Murphy is the ACLU lobbyist on campaign finance reform.
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The next witness will be Professor Richard Briffault, who is Vice Dean and Joseph P. Chamberlain Professor of Legislation at Columbia Law School. His primary areas of research, teaching and writing are State and local government law, election law and regulation. The professor is currently serving as Executive Director of the Special Commission on Campaign Finance Reform of the Association of the Bar of the City of New York.
The fourth witness on this panel will be Roger Pilon. Mr. Pilon holds the B. Kenneth Simon Chair in Constitutional Studies of the CATO Institute. Prior to joining CATO in October 1988, he held five senior posts in the Reagan Administration. Dr. Pilon has written and lectured widely in the areas of moral, political and legal theory, and has been recognized for excellence in writing on the Constitution.
Next we will hear from Glenn J. Moramarco, Senior Attorney at the Brennan Center for Justice at New York University School of Law. Prior to joining the Brennan Center, Mr. Moramarco served as an assistant U.S. attorney, practiced law in Washington, D.C., and in Philadelphia, and served as a law clerk to Judge Leonard I. Garth of the U.S. Court of Appeals for the Third Circuit.
The sixth witness on our panel is Joseph Remcho, an attorney with the law firm of Remcho, Johansen & Purcell in San Francisco. Mr. Remcho served as a commissioner of the California Fair Political Practices Commission from 1976 to 1979. His primary interest is in the litigation of State and Federal constitutional issues with an emphasis on the first amendment, election law, education and public policy litigation.
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Next will be John C. Bonifaz, the founder and executive director of the National Voting Rights Institute. The National Voting Rights Institute, which was founded in 1994, is a nonprofit organization specializing in campaign finance litigation. Mr. Bonifaz formerly served as the staff attorney for the Center for Responsive Politics in Washington, D.C.
Our final witness on this rather lengthy panel will be James Bopp, Jr. Mr. Bopp is the general counsel at the James Madison Center for Free Speech, and an attorney with the law firm of Bopp, Coleson & Bostrom in Indiana. His law practice concentrates on first amendment cases regarding political free speech and the free exercise of religion and prolife issues. Mr. Bopp has written extensively on the subject of campaign finance reform and the first amendment.
Again, I want to thank all of you for being with the subcommittee this afternoon. I would ask that you do your best to summarize your testimony in 5 minutes or less, as you are guided by the green light. When it turns red, that means the 5 minutes is up.
And, of course, without objection, your written statements will be made a part of the permanent hearing record. We will probably not enforce the 5-minute rule strictly, but given the length of the panel and the fact that we are starting in the afternoon, if you would try to do your very best to conclude your statements within the 5 minutes.
We will—if there are other Members that would like to make an opening statement, I would be happy to recognize you now before the panelists start. I have introduced the panelists.
Mr. HUTCHINSON. I am anxious to hear their testimony, and so I will waive any opening statement, anticipating a good exchange later.
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Mr. CANADY. Okay. Thank you. Okay. We will now proceed with the testimony of Commissioner Mason.
STATEMENT OF DAVID M. MASON, COMMISSIONER, FEDERAL ELECTION COMMISSION
Mr. MASON. Thank you, Mr. Chairman and Members, for this opportunity to testify. There is no more important issue in public policy than the question of how we govern ourselves, and that is what elections are all about. It is the most fundamental kind of question we face.
I want to clarify that my testimony today represents my individual views, not the views of the Federal Election Commission or of any colleagues on the Commission.
The first amendment limits the government regulation of political activity in a number of ways. This hearing's title indicates an emphasis on speech, but I would like to point out that first amendment protections of the right to assembly, press, and petition are all implicated by current campaign finance laws and by the various proposals that are out there.
And as a result of the first amendment's limitations on government authority and certain legal conflicts with that, this whole area of the law is enshrouded with a sort of penumbra of constitutional uncertainty emanating from the first amendment. And that really is the first thing I want to talk: about as one member of the Commission charged with enforcing Federal election law, it is striking the degree to which constitutional considerations are an everyday part of what we do.
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We think about constitutional issues in terms of the landmark cases like Buckley and the campaign finance area and others. But if we will think about it, and think about other landmark cases, Brown v. Board of Education, Roe v. Wade, those cases are only the beginning of a string of constitutional litigation, administrative actions and so on that lower courts and administrative agencies and legislatures have to undertake to bring themselves into conformance with those major principles.
A couple of examples from the Federal Election Commission. We have, right now, 12 active regulations projects, different areas that we are thinking about changing our regulations. Seven of those implicate first amendment rights. And the Commission is having to go through the exercise of making sure that our regulations, or proposed changes to regulations, are consistent with the first amendment.
We have 20 cases actively in litigation right now. Eleven of those cases implicate significant first amendment issues ranging from political party expenditure limits to soft money/hard money allocation rules, corporate contributions, disclosure requirements, disclaimer requirements, coordination, communication, express advocacy. All of those issues have been litigated many times, but still very live.
And the list I just gave doesn't include, for instance, the Forbes litigation that we just dismissed, which has to do with the press protection under the FECA or Nixon v. Shrink Missouri Government, which implicates the $1,000 contribution limit. It has been 23 years since Buckley and nearly 20 years since the FECA was amended in any substantial way, and yet some of these very fundamental issues about the scope of the Act and the permissibility of the government activities remain unsettled.
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One good example is the Colorado Republican case, which arose out of a 1986 Senate election, and yet is still pending in litigation. As you are aware, it has been to the Supreme Court one time already and is apparently headed back. The Federal Election Commission and the Colorado Republican Party believed that that case was a free speech case as it went up to the Supreme Court, and the question was did an express advocacy standard apply, or did an electioneering message standard, a somewhat broader standard, apply to statements by political parties.
The district court and the appellate court issued conflicting opinions. It went to the Supreme Court, and the Supreme Court said, no, this is not a speech case at all, this is an associational rights case and said in the first instance that political parties had the right to engage in independent expenditures on behalf of their nominees or prospective nominees, and then sent back for rehearing and rebriefing the question of whether there could be any limits at all on political party expenditures coordinated on behalf of their candidates.
So now after 13 years of proceeding in this case, not only do we not get clarification on the express advocacy issue, but we have opened up a whole new set of constitutional issues which the Commission and the opposing parties had initially thought were settled. And that is the kind of constitutional uncertainty that we are going through all the time.
The district court now has reheard the second round of that case, declared that the party's spending limit is unconstitutional, and that has now been appealed to the circuit court. If we are lucky, the circuit court will issue an opinion within a year, and will one party or the other be able to file a cert petition in the Supreme Court on in the fall of 2000.
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This is going to present some real difficulties for the Commission and for political parties, because if the circuit court were to agree with the district court and strike down the political party spending limitation, we would have one circuit court that had said that, and a question as to whether the Commission should suspend the enforcement of that law pending a Supreme Court opinion, and for political parties, whether they should ignore the law and go whole hog and spend all they want with their candidates at what risk.
So the lesson for Congress from this is that you ought to proceed very carefully in how you legislate in an area that you know has substantial first amendment implications, because it is not as simple as getting a test case up to the Supreme Court, having the Supreme Court issue an opinion, and then everything is okay after that. In the interim we have substantial limits, substantial chilling effects, substantial uncertainty for the administrative agency, and I think, more importantly, for the people who are regulated under the law.
These are very difficult situations, and to me that counsels in favor of incremental rather than revolutionary efforts to change the law.
I see the red light is on. I will just mention very briefly a couple of other areas I wanted to highlight.
One is the Internet. The Commission has recently voted to issue a notice of inquiry on the Internet. I mentioned that in the first amendment context, because it presents such substantially different questions than the normal way we think about campaign finance regulation, which is typically in the context of broadcast communications, radio and television.
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And the most salient aspect of broadcast communications is the scarcity. There are only a few licenses out there, not everybody can own one, and because of the scarcity, there are high prices, and so we have a strange admixture of speech and finance concerns, which are quite different, if not absent altogether, in an Internet context.
And I think it is very beneficial to everyone involved to look at the Internet and how different it is, to review the standards we have been propounding. I think the big question for the Commission is how far the media exemptions might extend in the case of the Internet.
Lastly, the big case the Supreme Court has now accepted for review, Shrink Missouri Government. I just like to observe that vis-a-vis the question of the $1,000 contribution limit and its constitutionality, that there is one piece of information you can pull out of Commission reports that would indicate some constitutional questions, not based on inflation, per se, that the $1,000 today is worth about one-third of what it was in 1974, but based on the pattern of violations of the law.
It is illegal under section 441(f) of the FECA to make contributions in the name of another. The Commission is seeing more and more of those cases, which could be an indicator that the $1,000 limit is so low that people are trying to circumvent the act. What is interesting in a number of these cases as you look at the details is they end up making $5,000 in contributions. In other words, it is not enough money that we would routinely think there is a big corruption problem, nor is it even enough money to raise an issue of was there favor-seeking or anything like that.
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People are simply motivated by an enthusiasm for candidates. They want to raise money; $1,000 isn't very much these days. I know it is a lot to a lot of people, but not in the context of a Presidential campaign. And so rather than preventing corruption, in a strange way the $1,000 limit may have become so effectively low that it itself becomes a source of or an inducement or an invitation to corrupt activity, which has no other corruption other than the $1,000 limit itself.
That is the kind of thing you have to watch for. As political technologies change, as realities in campaigns change, the constitutional issues may evolve as well.
That concludes my summary. Thank you very much.
Mr. CANADY. Thank you, Commissioner Mason.
[The prepared statement of Mr. Mason follows:]
PREPARED STATEMENT OF DAVID M. MASON, COMMISSIONER, FEDERAL ELECTION COMMISSION
Thank you, Chairman Canady and Members of the Subcommittee for this opportunity to testify today. There is no more important issue in public policy than the question of how we govern ourselves, and in a democratic polity the constitutional arrangements for elections are the most fundamental questions we face as a people.
This testimony represents my personal views, and does not represent the position of the Federal Election Commission, or of any of my colleagues on the Commission.
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It is worth noting at the outset that the framers of the Constitution left the primary responsibility for the governance and administration of elections to the states, casting Congress' power over elections as superior but exceptional rather than routine.
Just as in Section 4 of Article I, the Federal government could not leave itself naked to potential abuse of the electoral process by the states, through the First Amendment, Congress and the American people established certain fundamental protections for the right of self-government, stated as limitations on the power of the government itself. It is the conflict of these fundamental rights with specific positive restrictions on election activity that gives rise to many constitutional issues in campaign finance in particular. Just as state legislation must give way to federal under the time, place and manner clause, both federal and state legislation must give way to the requirements of the Constitution itself, specifically to the First Amendment.
THE COMPLEXITY AND PERSISTENCE OF CONSTITUTIONAL QUESTIONS IN CAMPAIGN FINANCE
As one Member of the Independent Agency charged with interpreting, administering, and enforcing (in a civil context) the Federal Election Campaign Act, what strikes me most is the degree to which constitutional considerations are an everyday factor in the administration of campaign finance law. For example, the Commission currently has twelve active regulations projects, seven of which directly implicate rights of speech, press or association. These range from major projects, such as our soft money rulemaking, to relatively minor ones, such as the definition of ''personal funds.''
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Our litigation case load shows a similar pattern. The Commission has twenty active litigation cases. At least 11 feature significant First Amendment issues. Among these are:
political party expenditure limits (FEC v. Colorado Republican Federal Campaign Committee)
the Commission's hard/soft money allocation rules (RNC v. FEC)
the corporate contribution ban (Mariani v. US)
disclaimer requirements for non-profit corporations (FEC v. Public Citizen)
coordination/communication with candidates and officials (FEC v. Christian Coalition, FEC v. Freedom's Heritage Forum)
political committee status (DNC v. FEC)
express advocacy (FEC v. Christian Coalition)
constitutionality of the Presidential fund act (Reform Party v. FEC)
This list does not include, since the FEC is not a party, Nixon v. Shrink Missouri Government PAC, the case which may implicate the constitutionality of the $1,000 contribution limit, which was recently accepted for review by the Supreme Court. Nor does this list include the recently dismissed case of FEC v. Forbes which involved the extent of press freedoms under the FECA.
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The overwhelming impression in reviewing these major activities of the Commission is that the question of constitutional issues in campaign finance is a constant, continuing and developing one. There are not a few major issues, but many; they arise not occasionally, but every day. Though it has been 23 years since the Buckley decision and twenty years since the FECA was amended in any significant way, the Commission continues to face multiple and significant constitutional challenges. Issues which the Commission, and even much of the regulated community, once thought settled can emerge unexpectedly and result in significant effects for the Commission and politically active groups.
The Colorado Republican case, already reviewed by the Supreme Court once, and apparently on the way to a second hearing there, provides an outstanding example of the difficulties this constitutional tumult presents. This case arose out of a 1986 Senate election. Both the FEC and the Colorado Republican Party believed, until the case reached the Supreme Court in 1996, that the central issue was a speech standard: whether the particular ads in question should be judged under an ''express advocacy'' test or under a broader ''electioneering message'' standard. The district and circuit courts issued contrary opinions. Rather than resolving this issue, the Supreme Court determined that the central issues in the case were associational rights: deciding in the first instance that political parties had a right to engage in independent expenditures and remanding for rehearing the question of whether limits on coordinated spending by political parties are constitutional. After a decade of litigation, not only have we failed to get further clarification of the express advocacy standard, but a new area of constitutionally- protected activity has been defined, and yet another area is suggested. (My own conclusion is that the electioneering message test is too vague to pass constitutional muster, but to the extent that others disagree, Colorado not only failed to clarify the issue but raised additional complex questions.)
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As the Subcommittee is aware, the District Court for Colorado has now decided that party spending limits are unconstitutional, and the case is now on appeal to the Tenth Circuit. If we are fortunate, the Tenth Circuit will hear the case and issue an opinion within a year, in time to file a cert petition in the Fall of 2000. The 1996 Supreme Court decision spawned significant political party independent expenditure efforts. Should the Tenth Circuit agree with the District Court on the question of coordinated spending by political parties, the Commission and political parties will be left in a very difficult position for the 2000 campaign cycle: should the Commission suspend enforcement of the law pending a Supreme Court decision, and should political parties violate the letter of the statute in expectation of such a decision?
One lesson from this experience is that we should not restrict our First Amendment analysis to speech rights alone. The efforts to ''ban'' soft money and broaden registration requirements which are the most prominent features of major campaign finance reform proposals display this flaw. Associational rights, press freedoms and the right to petition are all implicated in campaign finance legislation.
A second consideration is the degree to which constitutionally suspect legislation can put the executive agency administering the law and politically active citizens in difficult or even untenable positions.
The result of this plethora of post-Buckley constitutional litigation is that the Federal Election Commission sits as a sort of permanent administrative tribunal determining the degree and type of First Amendment freedoms different individuals and organizations are entitled to depending on our analysis of their purpose (political committee status), legal organization (for-profit, non-profit, LLC, partnership), FECA status (political party, press), internal structure (membership), private communications (coordination), as well as their mode of speech.
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Everyone understands that any significant campaign finance reform legislation will be subject to a judicial test. What policy makers may fail to appreciate is the degree to which even a detailed, significant and far-reaching ruling such as Buckley still leaves a wide zone of constitutional uncertainty which may subject campaigns and citizens to decades of uncertainty while inferior courts and my agency work out the practical details of landmark rulings.
The constitutional stakes, uncertainty and practical difficulties inherent in this process argue strongly in my mind for incremental rather than revolutionary reform of the campaign finance system.
THE INTERNET, THE FIRST AMENDMENT AND CAMPAIGN FINANCE REFORM
Of course, while constitutional adjudication is slowly proceeding, the real world of campaigns and public policy can change rapidly, presenting constitutional questions in completely new contexts. One of the major challenges for the FEC today is in determining how to treat the Internet for purposes of the FECA. Following a series of enforcement matters and advisory opinion requests, the Commission recently instructed its staff to draw up a regulatory Notice of Inquiry on the Internet and the FECA.
The Internet presents First Amendment questions in a new and beneficial light, especially compared with broadcast communications. The practical dominance of broadcast communication in political campaigns has led to some extremely negative consequences for the First Amendment status of political activity. Broadcast media are characterized legally, and to some degree practically, by scarcity. The fact that broadcast licenses, and therefore broadcast time, is quite limited is a far greater factor in regulation of the medium than the public nature of the broadcast spectrum. With scarcity comes high prices, and a resulting over-focus on the cost of political campaigns, and a confusing admixture of spending and speech questions.
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The Internet, on the other hand, has a basis of plenitude. There is literally no restriction on who can have an Internet site or on how many different sites there are. What is most salient about the Internet for First Amendment purposes is not whether 60 or 80 percent of the public has access, but interactivity. Anyone who is on the Internet can have something to say, and the financial and technical barriers to hosting a home page with substantial content are quite low. In the age of the Internet, everyone of even modest means can own a printing press.
For purposes of the First Amendment, and the FECA's media exemption, there is a real question of how extensively press freedoms should apply to the Internet. As a preliminary, if you have ever taken the opportunity to read newspapers from the early Federal period, you will note how partisan, contentious and irresponsible the press of the period marked by passage of the First Amendment was. Federal period newspapers remind me not so much of the New York Times or NBC as of the Drudge Report or ''HillaryNo.Com.''
In the specific context of the FECA, a media exemption applies to any ''periodical publication'' (unless controlled by a candidate or political committee). I am not sure why that exemption would apply any less to a regularly-updated personal homepage on the Internet as to ABCNews.com or Slate magazine.
The combination of open access and relatively low cost threatens to undermine the rationale behind the campaign finance regime. Just as Internet stock valuations appear untethered to underlying finances, the value of political communications on the Internet is driven more by innovation and presentation—that is to say by ideas—than by placement and spending. When the political impact of a site appears to far exceed its dollar cost, or when marginal costs are extremely low, it is difficult to apply a regulatory regime founded upon limits on finances, intended, we must remember, only to prevent financial corruption.
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THE $1,000 CONTRIBUTION LIMIT: PREVENTING CORRUPTION OR CAUSING CORRUPTION?
A more prosaic example of how change in the real world affects constitutional questions in campaign finance is the inflation question presented by the Shrink Missouri litigation. I think everyone would agree that at some point inflation could so erode the real value of a $1,000 contribution as to change its constitutional status. Though other questions are present, one issue in Shrink Missouri is likely to be whether the one-third diminution in the value of the $1,000 contribution since 1974 is a constitutionally- significant difference in kind.
In addition to this mathematical analysis, we should recall that the whole purpose of the $1,000 limit is to prevent corruption. The Federal Election Commission's enforcement caseload presents some evidence that this $1,000 limit may no longer advance that purpose, and may indeed itself have become a cause of corruption. It appears that this limit may be effectively so low as to induce people interested in engaging in politics to participate in illegal schemes to circumvent it with no directly corrupt purpose.
The Federal Election Commission has already released more 1996 cases involving conduit contribution allegations (section 441f of the statute) than it has had in any year in its history. The 1996 total is already over 20 percent higher than any previous year, and given our five year statute of limitations, additional 441f cases may yet be made public.
In at least some of these cases it appears that donors were motivated by little else than enthusiasm for a candidate. The sums raised in some instances are only a few thousand dollars, not enough to raise serious corruption concerns, nor in many of these cases were the recipient campaigns apparently aware of any extraordinary efforts which might give rise to suspicions of favor-seeking.
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It appears that the $1,000 limit may have become effectively so low that it has itself become a cause of corrupt activity, except that its circumvention may be motivated in some instances by nothing other than a pure desire to support favored campaigns. In judicial terms, this raises the question of whether the $1,000 limit is narrowly tailored in advancing its corruption-preventing rationale.
As with all of this testimony, I should note that several of my fellow Commissioners may disagree with my analysis, but in my view the Commission's enforcement experience raises a genuine question in this regard.
ANONYMOUS SPEECH OR EXPANDED DISCLOSURE?
Lastly, I would like to draw the Subcommittee's attention to a string of cases involving anonymous speech because they raise questions about one of the broadest areas of agreement in Campaign Finance Reform, expanded disclosure. Simply put, since the Supreme Court enunciated a right to anonymous political speech in McIntyre v. Ohio, a string of lower courts has fairly consistently applied the Supreme Court's reasoning from voter referenda to candidate elections. Most of these courts have reached the conclusion that there is no constitutional difference in the degree of First Amendment protection between referenda and candidate elections. While I would note that the Supreme Court did view the candidate-referenda distinction as significant in Belotti, as to corporations, the consistent weight and powerful reasoning of these lower court opinions do not allow us to dismiss the concept that at least some anonymous activity is protected in candidate elections. In Buckley itself the Supreme Court declared that contributors who have valid reasons to fear retribution may remain anonymous despite the FECA's reporting requirements. Following are some significant cases and precedents in this area.(see footnote 1)
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1. Talley v. California, 362 U.S. 60 (1960): Manuel Talley was convicted of violating a Los Angeles ordinance that prohibited the distribution of ''any handbill in any place under any circumstances, which does not have printed on the cover, or the face thereof, the name and address of . . . the person who printed, wrote, compiled or manufactured [it] [and] the person who caused [it] to be distributed.'' Id. at 60–61. He had distributed handbills that ''urged readers to help [his] organization [National Consumers Mobilization] carry on a boycott against certain merchants and businessmen . . . on the ground that . . . they carried products of manufacturers who will not offer equal employment opportunities . . .'' Id. at 61. The Court held that the statute was void on its face for violating the freedom of (anonymous) expression. Id. at 64–65. It noted that ''anonymous pamphlets, leaflets, brochures and . . . books have played an important role in the progress of mankind,'' including in the founding of this country (e.g., the Federalist Papers), id. at 64–65.(see footnote 2) The ordinance did not seek to identify, as the City argued, only fraudulent, false or libelous materials, but rather barred all handbills that did not have the requisite disclaimer. Id. at 64.
2. New York v. Duryea, 76 Misc.2d 948, 351 N.Y.S.2d 978 (1974) (cited in McIntyre, 514 U.S. at 348, n.11): New York prosecuted the Speaker of its State Assembly and two of his aides (his Executive and Special assistants), along with Assembly Majority Leader and an Assembly Member, for distributing letters bearing the signature of a person identified as a party official and urging members of that party to vote for its candidates, when, in fact, the letters had originated with another campaign committee (of which the Defendants were officers). The Court held that the First Amendment did not protect the Defendants' fraudulent conduct, but the statute, which prohibited anonymous distribution of campaign literature, was unconstitutionally overbroad.
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3. Wilson v. Stocker, 819 F.2d 943 (10th Cir. 1987): James Wilson was arrested for distributing unsigned handbills opposing a candidate for the state senate in violation of state statute prohibiting anonymous campaign literature (that which, inter alia, ''is designed to influence the voters on the nomination or election of a candidate''). Relying heavily on Talley, the Court held the statute was facially overbroad.
4. McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995): Margaret McIntyre distributed leaflets opposing a school bond levy in violation of state statute that prohibited the distribution of anonymous campaign literature. The United States Supreme Court held that an author's decision to remain anonymous, like other decisions concerning the content of publication, is an aspect of free speech that the First Amendment protects and outweighs the state's interest in providing the electorate with information. Id. at 341–343. The statute also could not be justified based on preventing falsehoods, as it was not limited to such material. Id. at 343–345.
5. State v. Moses, 655 So.2d 779 (La. App. 4 Cir. 1995) (first post-McIntyre decision): Napoleon Moses was indicted for violating a Louisiana statute that prohibited the distribution of campaign literature which did not contain the name (and in some cases the address) of the person distributing it. The Court held that McIntyre was sufficient authority for striking down the statute, given that, under the Louisiana Constitution and caselaw,(see footnote 3) ''the state interest required to justify even a limited prohibition on election-related anonymous literature in Louisiana should be much more compelling than that which theoretically the U.S. Supreme Court [in McIntyre] might have found sufficient in Ohio or elsewhere.'' Id. at 782.(see footnote 4) (The Court seemed to conclude that the statute was unconstitutional under both the federal and state constitutions: ''We conclude that the right to distribute anonymous campaign literature is clearly protected by the First Amendment to the United States Constitution as interpreted by the United States Supreme Court and by . . . the Louisiana Constitution. Accordingly, we declare [the statute] to be unconstitutional.'' Id. at 785.]
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6. Shrink Missouri Government PAC v. Maupin, 892 F. Supp. 1246 (E.D. Mo. 1995): Past and possibly future state candidates challenged state statute requiring any printed or broadcast matter with allegations about any other candidate contain disclaimers that candidate ''approved'' and ''authorized'' the advertisement. Court held that statue unconstitutional (not narrowly tailored).
7. West Virginians for Life, Inc. v. Smith, 960 F. Supp. 1036 (S.D.W. Va. 1996): Not- for-profit corporation and individuals brought pre-enforcement challenge to state statutes prohibiting the: a) publication, distribution, or dissemination of a scorecard, voter guide, or other written analysis of a candidate's position within 60 days of an election unless the document includes the name of the party responsible for it; and b) publication, issuance, or circulation of any anonymous letter, circular, or other publication tending to influence voting at any election. The Court held the state did not meet its burden of proving that the ''anonymity provisions'' were narrowly tailored to serve the compelling interest of avoiding corruption, nor were they limited to preventing fraudulent, false or misleading statements, or to regulating anonymous express advocacy (the statutes encompassed candidate issue advocacy, which, the court held, was just as protected as the noncandidate issue advocacy in McIntyre).
8. Stewart v. Taylor, 953 F. Supp. 1047 (S.D. Ind. 1997): Candidate for township advisory board placed sign expressly advocating her election but which did not identify who paid for it, in violation of state statute requiring such identification on ''material in support of or in opposition to a candidate'' and requiring (in some instances) whether such material was approved by the candidate in support of whom it was published or circulated. Court held that statute was unconstitutional.
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9. Virginia Society For Human Life, Inc. v. Caldwell, 500 S.E.2d 814 (1998) (VSHL) (answer to certified question from United States Court of Appeals for the Fourth Circuit): non-profit group that conducted issue advocacy by preparing and distributing voter guides challenged (pre-enforcement) state statutes that, inter alia, required any writing made ''for the purpose of influencing the outcome of an election for public office'' identify the author. To avoid unconstitutional overbreadth, Virginia Supreme Court construed ''influencing election'' language so as not to apply to individuals and groups engaging solely in issue advocacy. Id. at 816–818.(see footnote 5)
10. Arkansas Right to Life State Political Action Committee v. Butler, 29 F. Supp.2d 540 (W.D. Ark. 1998): Political action committee and individual brought pre-enforcement challenge to state statute requiring any person making an independent expenditure to name and identify itself and to state that such expenditure was ''not authorized by candidate.'' Court held that while self-identification disclaimer was constitutional, there was no evidence that ''authorization'' component was narrowly tailored to advance state's interest in advising electorate of candidate's sources of support.
11. Griset v. Fair Political Practices Commission, 69 Cal. App. 4th 818, 82 Cal. Rptr.2d 25 (1999): Candidate committees of incumbent councilman sent mass mailings without identifying councilman as controlling candidate in violation of state statute requiring candidates for office and individuals or groups supporting them to identify themselves on mass mailings sent to voters. Court held statute to be unconstitutional and noted that protection for anonymous speech was not confined to referenda but included candidate speech. Id. at 30–34.
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12. Opinion of the Oregon Attorney General, Number 8266, 1999 WL 133100 (March 10, 1999): Oregon Attorney General opined that state statute prohibiting most anonymous signs, publications and broadcasts used in political campaigns violated the free speech provisions of both the United States and Oregon Constitutions. The opinion noted, however, that courts subsequent to McIntyre have disagreed on the scope of the First Amendment's protection for anonymity. Id. at 46. Comparing VSHL (narrowly construing statute to prohibit only anonymous express advocacy (thereby implicitly concluding that such prohibitions are constitutional)) with Moses (striking down statute in toto).
The only significant, somewhat contrary authority to the cases above is Kentucky Right To Life, Inc. v. Terry, 108 F.3d 637 (6th Cir. 1997) (state statute requiring ''paid for by'' disclaimer on independent expenditures was narrowly tailored to advance state interest in advising electorate of sources of support and prevent actual and perceived corruption).(see footnote 6)
I think it is fair to conclude from these cases that courts will protect at least some anonymous speech in candidate elections. Given these cases, I think Congress would be well served to consider carefully how (if at all) to expand disclosure requirements, rather than simply treating more disclosure as automatically better. The trend in court decisions indicates that we face at least some risk of having even current disclosure requirements struck down or narrowed.
CONCLUSION: EXPANDING RATHER THAN LIMITING POLITICAL PARTICIPATION
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In conclusion, we must recall that all political activity is, by definition, protected by the First Amendment. While many of us have firm opinions, which we hope are well founded, about settled areas of the law, we can expect significant constitutional issues to arise and be adjudicated in a campaign finance context, as with other areas of First Amendment law. Congress should be cognizant that it is dealing not only with speech standards (soft money and express advocacy) but with a range of other First Amendment issues. As political practices and technologies change, new First Amendment issues will arise and formerly settled distinctions will fade or become irrelevant.
For these reasons, a comprehensive but constitutionally-permissible campaign finance reform may be an impossible quest. If Congress chooses to pass sweeping campaign finance legislation without careful attention to constitutional considerations, Members should realize that they are presenting significant constitutional issues not only to the courts, but to the agency that administers the law, and to campaigns and citizens who live under it, not only as to one major case, but in a series of controversies likely to last for decades.
For these reasons, Congress might look to opportunities, such as those presented by the Internet, to expand political liberties and participation, rather than restricting campaign finances, as the most appropriate means of preventing corruption and reforming the political process.
Mr. CANADY. Ms. Murphy.
STATEMENT OF LAURA W. MURPHY, DIRECTOR, AMERICAN CIVIL LIBERTIES UNION, WASHINGTON OFFICE
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Ms. MURPHY. Thank you, Chairman Canady, and members of the subcommittee. I really appreciate the opportunity to testify today on behalf of the American Civil Liberties Union. Wholly apart from my professional responsibilities as the ACLU's chief lobbyist on this issue, I like to think about and talk about this issue, because there have been 13 runs for public office in my immediate family. And so after handing out campaign literature and going door to door since the age of 7, I have some real deep appreciation for the importance of the rules of the game, and campaign finance reform deals with the rules of the game.
But I also appreciate the fact that you are viewing this issue through a constitutional prism, because so many constitutional issues are at stake, as Commissioner Mason said.
The ACLU has been studying, litigating and lobbying on these issues for the last 25 years. We were instrumental in two cases, bringing two cases that proceeded Buckley, the National Committee on Impeachment v. The United States, and ACLU v. Jennings. And ACLU attorneys also argued in the Buckley case in the Supreme Court.
My testimony—I am going to jump around a little bit, because I wrote 13 pages of single-spaced testimony, again, evidence of my passion. But I am always—I always feel better, because there are two other people in the room who always write more than I do, Doug Johnson of the National Right to Life Committee, and James Bopp. So Jim gets the prize for the thickest piece of testimony.
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We all know the reasons why there is a mishmash of laws governing our political process, and that is because Buckley really constrained the ability of Congress to legislate and prescribe activity in this area. So we have this patchwork quilt of laws, oftentimes things that don't make sense, personal wealth that can be spent, but inability to contribute more than $1,000 to a particular candidate for people who don't have personal wealth. I mean, there is really no rhyme or reason here.
And I understand that Members of Congress feel enormous pressure to do something, but I think we should all feel some pressure to do something. The system of electing candidates to Federal office needs repair. So today we will not just state our objections to the constitutional infirmities of the most popular pill, the Shays-Meehan bill that the House is likely to consider, but we will also continue to advocate for reform of the current system, but with fidelity to the first amendment principles we hold dear and with the goal of expanding and not limiting speech.
My written testimony again focuses on three areas. It outlines what we believe to be the problems in our system, and I think talking about the problems is important, because when you listen to the House debate, in particular last year, many Members didn't agree on what the problems were, so, of course, there was no agreement on what the solution should be.
But the other two issues that I would like to talk about are what are the Civil Liberties objections to the most popular reform measures and what are our proposed solutions.
The main problems with the Shays-Meehan bill, and it has been reintroduced, it is H.R. 417, is that it restricts the right of the people to express their opinions about elected officials and issues through unprecedented limitations on the issuance of voting records and restraints on citizen commentary prior to an election. In other words, it greatly, greatly infringes on the right of the people to engage in issue advocacy. In our view, there are also constitutional problems with restrictions on contributions to and uses of soft money.
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Thirdly, it chills free expression through burdensome reporting requirements and greatly expands FEC investigative and enforcement authority. And, finally, it encourages discrimination against lawful permanent residents, and we believe this not only alienates emerging groups of citizens, but also makes people who are new citizens less likely and less willing to participate in the political process through contributions.
This bill contains a permanent year-round restriction on issue advocacy achieved through redefining express advocacy in an unconstitutionally vague and overbroad manner. What Shays-Meehan does is essentially take a lot of activities that occur before an election and turn them into forms of express advocacy so that these activities have to be reported to the FEC, so that contribution limits are put into place.
And we are very, very concerned, reporting requirements, that these limitations are likely to chill free expression right before an election, the time when people's voices need to be heard the most about issues.
The Shays-Meehan bill requires a 2-month blackout on all television and radio issue advertising before the primary and general elections. The Shays-Meehan bill contains a misleading exception for candidate voting records. So often throughout the debate last year, we heard from the sponsors of the legislation that voting records were adequately protected. They are not in the Shays-Meehan bill, because any kind of editorial comment that accompanies voting records is very constrained.
And overall, the bill redefines terms like expenditure, contribution, coordination with the candidate, so that heretofore legal and constitutionally protected activities of advocacy groups become illegal. And the fact they become illegal is no small thing because slipped into this year's bill was a 1-year mandatory minimum. I thought the ACLU had plenty to deal with in the juvenile justice bill and larger crime bills, but now here we have a mandatory minimum for failing to comply with FEC regulations and FECA.
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Well, let us suppose, for example, that Congress tried to constrain editorial boards of newspapers in a similar fashion, that they constrained issue advocacy groups as they propose in this bill. Any time a news outlet ran an editorial 60 days before an election or otherwise that mentioned the name of a candidate, the law would now require them to disclose the author of the editorial, the amount of money spent to distribute the editorial, and the names of the owners of the newspapers to the FEC or risk prosecution or imprisonment.
We would never dream of doing that in this country, and yet newspapers and broadcast outlets have tremendous bearing on how voters make their decisions in the polling booth. I have seen more people with the Washington Post rolled up under their arm going into the voting booth than I have people with issue group literature. But we would never dream of constraining the press the way we constrain issue advocacy groups.
And I think if we are going to look at all of the constitutional issues, we ought to say what is good for the goose is good for the gander. And if it is not good for the press, it certainly isn't good to even constrain less powerful groups like issue advocacy organizations.
I see that the red light is on. But let me just say one thing about—two things, and then I will end. Soft money is a conundrum for most people. The litigation isn't as clear in this area. And I think that we have to look at parties as two bodies in one. In other words, parties exist to help elect their candidates, that is true, but they also exist to be issue advocacy organizations. And to the extent we permit Congress to restrict contributions to parties, I think we are getting on a slippery slope that will lead to a justification for restricting issue advocacy groups.
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And the last thing I want to say is that most of the debate over the 1996 election problems that led to a very vigorous campaign finance reform debate last year had to do with the influence of foreign nationals on our political process. And I just think that it is important for us to treat legal, permanent residents differently. These are citizens who are waiting, these are people who can be drafted, these people who pay U.S. taxes. And I don't think it is appropriate for Congress to limit their ability to contribute to parties in a way that really makes them outsiders in the political process. And these are the people we have invited to this country for the most part, and we should not exclude them.
I will save a lot of what the ACLU is concerned about for the question-and-answer period. And again, I would like to thank the members of the subcommittee for inviting us to testify.
Mr. CANADY. Thank you, Ms. Murphy.
[The prepared statement of Ms. Murphy follows:]
PREPARED STATEMENT OF LAURA W. MURPHY, DIRECTOR, AMERICAN CIVIL LIBERTIES UNION, WASHINGTON OFFICE
Chairman Hyde, Chariman Canady, Members of the Subcommittee, my name is Laura W. Murphy. I appreciate the opportunity to testify today on behalf of the American Civil Liberties Union (ACLU). For almost 80 years the ACLU has been a nation-wide, non-partisan membership organization of nearly 300,000 members devoted to protecting the rights and principles of freedom and individual liberty set forth in the Bill of Rights and the Constitution.
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The ACLU and the ACLU Foundation are not-for-profit 501(c)(4) and 501(c)(3) organizations respectively. We are wholly supported through membership dues, private individual donations and foundation grants. Neither entity receives any federal funds, whatsoever.
I have had the privilege of serving as Director of the ACLUE Washington Office for the last six years. In addition to directing the overall legislative and Executive Branch operations for the national organization, since 1995 I have also served as the ACLU's primary lobbyist on campaign finance reform issues.
Wholly apart from my current professional responsibilities, my interest in this issue even predates my tenure with the ACLU or formal work experience in politics that started right here in 1976 as a legislative assistant on Capitol Hill. From the age of seven through the end of college, I was going door-to-door campaigning for several members of my immediate family who ran for office some thirteen times in my home town of Baltimore, Maryland. For the most part my father, mother and two eldest brothers had the means to finance their own campaigns, even ones that were city-wide. However, I know all too well the rubber chicken fund raising circuit, as well as the numerous paper cuts that can be endured when the direct mail drops are assembled on the kitchen table with volunteer and child labor. I hope that these personal experiences combined with my fealty to First Amendment freedoms helps me to be practical and principled in crafting our response to federal campaign finance proposals.
The ACLU has been studying, litigating and lobbying on the constitutional and practical implications of federal campaign finance laws for over the last twenty five years. The ACLU filed two important lawsuits that preceded Buckley v. Valeo, 424 U.S. 1 (1976)—National Committee on Impeachment v. United States 469 F. 2d 1135 (2d Cir. 1972) and ACLU v. Jennings 366 F. Supp. 1041 (D.D.C. 1973). ACLU attorneys also argued for the plaintiffs before the Supreme Court in the case of Buckley v. Valeo. These three ACLU cases created much of the constitutional framework that has constrained all federal campaign finance legislation during the past two decades. For the benefit of the newer members of Congress, I hope the Chairman will allow me to submit for this hearing record previous testimony that effectively summarizes this litigation written by Ira Glasser, ACLU National Executive Director and Joel Gora, Professor of Law, Brooklyn Law School and campaign finance counsel to the ACLU.
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Perennial congressional debates on campaign finance reform are driven by several elements:
A desire to prove to the public that Congress is willing to limit the perception or reality that corporate, personal or interest group funds disproportionately or illegally influence the outcome of elections and the fate of legislation.
A need to respond to perceived campaign abuses of the moment.
Personal frustration about the time and effort that it takes to raise money to run for Congress.
Frustration by candidates and some interest groups that, during elections, information about candidates or their positions on issues is not solely controlled by parties and candidates because of the explosion of unregulated soft money and issue advocacy.
The desire to address the unintended consequences created by the original Federal Election Campaign Act (FECA) and subsequent court rulings (placing influence on campaigns outside the sphere of ''control'' of candidates).
Rigid notions, carried over from Congress to Congress, of what constitutes legitimate ''reform'' legislation.
Related decisions by House and Senate party leaders about which proposals will make it through the legislative processes (through discharge or normal processes), and subsequent pressure on members to ''fall in line.''
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Unfortunately, efforts to engage in true problem solving have been frustrating. Congress and the so-called reform interest groups seem hardened in their approach to reform. Recent congressional debates seem more focused on immediate problems such as the 1996 soft money scandal than on fixing systemic problems in a constitutional manner. Most of my recent conversations with members of Congress and interest groups have been focused more on what is expedient and politically correct and not enough on preserving First Amendment freedoms. When constitutional issues are raised, some cynically characterized these issues only as a means by ''reform opponents'' to undermine popular ''reform'' proposals.
What is worse, some Members feel such enormous pressure to ''do something'' that they quietly say they hope the courts will overturn the very laws they are voting to enact. Sometimes voting against bills like Shays-Meehan, even if it is done to protect the First Amendment, is not worth the criticism by their colleagues, the ''reformers'' or the media back at home in the district. Other Members only recognize the First Amendment in the context of campaign finance reform and become deaf to it when it concerns flag desecration or Internet free speech or hate speech. At the end of the day—because of the certainty of filibusters and challenges to the constitutionality of the legislation too many Members are convinced that the status quo that got them here will prevail. For these survivors, the known ''evil'' of our broken system is preferable to the imaginary ''level playing field'' promised to us all by Shays-Meehan.
In case I am sounding like the ACLU is here only to point fingers, let me say that we intend to be part of the solution. The system of electing candidates to federal office needs repair. The ACLU is too often perceived as a pawn of the ''just say no to reform'' crowd rather than the engine of creative constitutional proposals to address our systemic electoral problems. The ACLU will not merely state its objections the constitutional infirmities of the popular so-called reform measures such as the Shays-Meehan bill, H. R. 417. We will continue to advocate reform of the current system, but with fidelity to the First Amendment principles, and with the goal of expanding, not limiting political speech.
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In today's testimony I will address the following three issues: What are the problems in our current system? What are the civil liberties objections to the most popular reform measures? What are our proposed solutions?
THE PROBLEMS IN OUR CURRENT SYSTEM
Most of us on this panel probably agree that we have a political financing system that is in need of reform. It is a system of unintended consequences, created by well-intentioned legislation proposed to fight corruption during the Watergate era in 1971 and 1974. Federal court rulings, most notably the Supreme Court's decision in Buckley v. Valeo and many related decisions during the last two decades, struck down much of the 1974 law.
Some oversimplify Buckley and reduce it to a ruling that says ''money equals speech.'' But the ruling was more nuanced than that. The Court recognized that money is spent in our democratic system for speech to be heard. Flyers are printed, ads are run, consultants are hired and paid, trips are taken—all to get political and issue messages out. The Court believed that to the extent Congress placed dollar limits on the amounts of funds raised and spent, it gave the government the capacity to ration and control political speech protected by the First Amendment.
But the Court also ruled that the only reason that limits should be in place at all is to guard against the reality or appearance of corruption. Because some of the laws Congress enacted were kept in place and others were not, we have a legal mishmash of Congressional statutes and Court rulings giving us our current system that:
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Retains outdated campaign contribution limits of $1,000 per race, $2,000 per cycle and $25,000 in total;
Allows unchecked spending by candidates with personal wealth;
Forces candidates to spend much more time raising money because of contribution limits that have never been adjusted for inflation;
Gives rise to and fosters reliance upon political action committees (PACs);
Increases the importance of independent expenditures (that are used to support or oppose candidates but are not run or coordinated by the candidates);
Helps explode the raising and spending of money by political parties, known as ''soft money;''
Skews the marketplace of ideas by stifling some voices and, by default, magnifying others, such as those of the owners of major media outlets whose editorials cannot (and should not) be controlled by campaign finance legislation; and
Greatly enhances the influence of celebrity endorsements because of the restrictions on hard money funds available for campaigns.
Now that we have identified these interconnected problems in our campaign finance system, we need to focus on meaningful solutions. But let's first focus on what we should not do.
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WHAT ARE THE RISKS POSED BY THE MOST POPULAR REFORM MEASURES?
The American Civil Liberties Union believes that too many current proposals attempt to restrict issue advocacy, soft money and rights of new Americans and lawful permanent residents in a manner inconsistent with federal court holdings and constitutional rights. For the sake of today's testimony I will focus my remarks primarily on key elements of H.R. 417 the Shays-Meehan bill, because this is the bill that has the most co-sponsors and enjoys the support of President Clinton. We believe that this bill violates First Amendment rights because the legislation contains provisions that would:
restrict the right of the people to express their opinions about elected officials and issues through unprecedented limitations on text accompanying issue group voting records and restraints on citizen commentary prior to an election,
restrict contributions to, and uses of soft money, and
chill free expression through burdensome reporting requirements and greatly expanded FEC investigative and enforcement authority, and
encourage discrimination against lawful permanent residents and alienate emerging groups of citizens and potential from our political systems.
H.R. 417 creates burdensome laws that will abridge the very speech that the First Amendment was designed to protect political speech.
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ISSUE ADVOCACY
Shays-Meehan has a chilling affect on issue group speech that is essential in a democracy. H.R. 417 contains the harshest and most unconstitutional controls on issue advocacy groups.
This bill contains a permanent year-round restriction on issue advocacy achieved through redefining express advocacy in an unconstitutionally vague and over-broad manner. The Supreme Court has held that only express advocacy, narrowly defined, can be subject to campaign finance controls. The key to the existing definition of express advocacy is the inclusion of an explicit directive to vote for or vote against a candidate. Minus the explicit directive or so-called ''bright-line'' test, what will constitute express advocacy will be in the eye of the beholder, in this case the Federal Election Commission (FEC). Few non-profit issue groups will want to risk their tax status or incur legal expenses to engage in speech that could be interpreted by the FEC to have an influence on the outcome of an election.
It requires a two-month black-out on all television and radio issue advertising before the primary and general elections. The bill's statutory limitations on issue advocacy would force groups that now engage in issue advocacy—501(c)(3)s and 501(c)(4)s—to create new institutional entities PACs—in order to ''legally'' speak within 60 days before an election. Groups would also be forced to disclose or identify all contributors to the new PAC. For organizations like the ACLU, this will mean individuals will stop contributing rather than risk publicity about their gift. The opportunities that donors now have to contribute anonymously to our efforts to highlight issues during elections would be eliminated. (This is a special concern for groups that advocate unpopular or divisive causes. See NAACP v. Alabama 357 U.S. 449(1958).) For many non-profits, being forced to establish PACs entails a significant and costly burden, one that can change the very character of the organization. Separate accounting procedures, new legal compliance costs and separate administrative processes would be imposed on these groups—a high price to exercise their First Amendment rights to comment on candidate records. It is very likely that some groups will remain silent rather than risk violating this new requirement or absorbing the attendant cost of compliance. The only entities that will be able to characterize a candidate's record on radio and television during this 60-day period will be the candidates, PACs and the media. Yet, the period when non-PAC issue groups are locked out is the very time when everyone it paying attention! Further, members of Congress need only wait until the last 60 days before an election (as it often does now) to vote for legislation or engage in controversial behavior, so that their actions are beyond the reach of public comment and, therefore, effectively immune from citizen criticism.
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Shays-Meehan contains a misleading exception for candidate voting records. The voting records that would be permitted under this new statute would be stripped of any advocacy-like commentary. For example, depending on its wording, the ACLU might be banned from distributing a voting guide that highlights members of Congress who have a 100 percent ACLU voting records as members of an ''ACLU Honor Role.'' Unless the ACLU chose to create a PAC to publish such guides, we would be barred by this statute even though we do not expressly advocate the election or defeat of a candidate. Courts have clearly held that such a result is an unacceptable or unconstitutional restraint on issue-oriented speech.
It redefines ''expenditure,'' ''contribution'' and ''coordination with a candidate'' so that heretofore legal and constitutionally protected activities of issue advocacy groups would become illegal. Let's say, for example, that the ACLU decided to place an ad lauding, by name, Representatives or Senators for the effective advocacy of constitutional campaign finance reform. That ad would be counted as express advocacy on behalf of the named Congresspersons under H.R. 417 and would be effectively prohibited. If the ACLU checked with key congressional offices to determine when this reform measure was coming to the floor so the placement of the ad would be timely that would be an ''expenditure'' counted as a ''contribution'' to the named officials and it would be deemed ''coordinated with the candidate.'' An expanded definition of coordination chills legal and appropriate issue group-candidate discussion.
If these very same restrictions outlined above were imposed on the media, we would have a national First Amendment crisis of huge proportions. Yet, newspapers such as the Washington Post, the New York Times, the Los Angeles Times and other media outlets relentlessly editorialize in favor of Shays-Meehan—a proposal that blatantly chills free speech rights of others, but not their own. Let's suppose Congress constrained editorial boards in a similar fashion. Any time news outlets ran an editorial—60 days before an election or otherwise—that mentioned the name of a candidate, the law now required them to disclose the author of the editorial, the amount of money spent to distribute the editorial and the names of the owners of the newspaper to the FEC, or risk prosecution. The media powerhouses would engage in a frenzy of protest, and you could count on the ACLU challenging such restraints on free speech. Yet, the press has as much if not more influence on the outcome of elections as all issue advocacy groups combined. I've seen more people go to the polls with their newspapers wrapped under their arm than any other issue group literature.
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The Shays-Meehan bill contains misguided and unconstitutional restrictions on issue group speech and only works to further empower the media to influence the outcome of elections. None of the proposals seek to regulate the ability of the media—print, electronic, broadcast or cable—to exercise its enormous power to direct news coverage and editorialize in favor or against candidates. This would be clearly unconstitutional. It is equally unconstitutional to effectively chill and eliminate citizen group advocacy. It is scandalous that Congress would muzzle issue groups in such a fashion.
Finally, the ACLU has to be especially watchful of the Federal Elections Commission because it is a federal agency whose primary purpose is to monitor political speech. If Congress gives the FEC the authority to decide what constitutes ''true'' issue advocacy versus ''sham'' issue advocacy, the FEC is then empowered to become ''Big Brother'' of the worst kind. Already, it has been, far too often, an agency in the business of investigating and prosecuting political speech. The FEC would have to develop a huge apparatus that would be in the full-time business of determining which communications are considered unlawful ''electioneering'' by citizens and non-profit groups. Further, Shays-Meehan contains harsh penalties for failure to comply with the new laws.
SOFT MONEY
Congress feels compelled to stem the huge monetary contributions to the Democratic and Republican parties known as soft money. However the challenge is to approach any regulation in this area in a manner that is consistent with existing restrictions on hard money and in a way that does not undermine the parties' ability or rights to engage in issue advocacy. Congress must recognize that parties are both advocates for their candidates, dedicated to getting them elected, as well as issue groups. The typical response to this phenomenon in most reform proposals is to make all contributions to parties hard money contributions. Many allege that this is necessary because large contributions are corrupting the parties
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Has Congress proven that the candidates and the parties have been ''corrupted'' by huge corporate, individual and union gifts to parties? The risk of corruption must be established because that is the fundamental rationale that the Supreme Court has used to let stand contributions limits. In the absence of any compelling governmental interest, restrictions on corporate and union contributions to parties not only trammel the First Amendment rights of parties and their supporters, they also dry up funds for issue advocacy work of parties. Parties would be unable to support grass roots activity, candidate recruitment and get-out-the-vote efforts to the same extent they do now. Once Congress is able to place contribution limits on party issue advocacy activities, then the troublesome potential for a ''slippery slope'' is created leading to restriction on non-party issue advocacy.
The ACLU recognizes that there has been an explosion in soft money largely because hard money contributions to candidates and parties have not kept up with inflation. In addition, when the FEC issued its 1978 ruling that facilitated the use of soft money, it did not realize that soft money contributions would increase exponentially. But the problem with Congressional efforts to restrict soft money is that Congress has not put forth an adequate rationale for restriction. In Colorado Republican Federal Campaign Committee v. FEC, 116 S.Ct. 2309 (1996) the Supreme Court stated:
''We recognize that FECA permits individuals to contribute more money ($20,000) to a party that to a candidate ($1,000) or to other political committees ($5,000) . . . We also recognized that FECA permits unregulated ''soft money'' contributions to a party for certain activities, such as electing candidates for state office . . . or for voter registration and ''get out the vote'' drives . . . But the opportunity for corruption posed by these greater opportunities for contributions is, at best, attenuated. Unregulated ''soft money'' contributions may not be used to influence a federal campaign, except when used in the limited party-building activities specifically designated by statute.'' Id. At 2316.
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In addition, the ACLU is also concerned that restrictions on soft money are a potential form of incumbent protection of the most insidious kind. Congress is approaching the phenomenon of huge soft money contributions thinking only about Democratic and Republican parties. But what kinds of burdens does this create for emerging parties? How does an environmental party or a libertarian party raise enough money to get its agenda in the national media? Emerging parties often need a few very large contributions to jump-start their ability to attract media and a following on their issues.
We believe that Shays/Meehan impermissibly limits soft money. These provisions do not do anything to ''Big Money'' in politics except push money into other forms of speech that are beyond the reach of the campaign finance laws.
POLITICAL SPEECH OF NEW AMERICANS AND LEGAL IMMIGRANTS
Shays-Meehan threatens candidates and other person who accept a contribution from a foreign national with a prison term and a fine if the candidate ''should have known'' that the contribution came from a foreign national. This provision could effectively turn new Americans and legal immigrants, all of whom are now empowered to participate fully in the political process by making campaign contributions and expenditures, into political pariahs. It encourages political discrimination because it threatens those who ''should have known'' that the contribution came from a foreign national. It does not tell a candidate or a low-level volunteer who solicits contributions for them how to make that determination.
It purports to limit the chances for discrimination against citizens and legal immigrants with foreign-sounding names by saying the donor's name should not be used as the basis to discriminate. What kind of protection is this? It virtually encourages discrimination based on national origin provided that the indicia of origin is something other than the person's name, such as their ''foreign'' appearance or accent, or for that matter, their neighborhood if it is known to have a lot of people ineligible to contribute on account of their immigration status. If you think this is far-fetched, look no further than the Democratic National Committee's investigation of contributions from foreign nationals in the election before last: it put together a list of those it investigated, virtually all of whom had ''foreign sounding'' names, while proclaiming that other criteria were used to select those whom to investigate.
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Last year, the Shays-Meehan bill degenerated into an attack on the political participation of legal immigrants. Members voted overwhelmingly to bar legal immigrants from making campaign contributions and expenditures, and they did it even though nearly 100 law professors pointed out that such a bar was unconstitutional. People who live here permanently, send their children to our schools, have often married U.S. citizens, served in the Armed Forces (and, indeed, would be subject to the draft if it were reinstated), and pay taxes just like citizens do would have been stifled. H.R. 417 does not currently contain the bar on legal immigrants' contributions. However, we see no reason not to fear that the outcome would be the same this year as last as a result of a likely amendment to the Shays-Meehan bill.
WHAT ARE OUR PROPOSED SOLUTIONS?
The ACLU believes that there is a less drastic and constitutionally offensive way to achieve reform: public financing.
If you believe that the public policy process is distorted by candidates' growing dependence on large contributions then you should help qualified candidates mount competitive campaigns especially if they lack personal wealth or cannot privately raise large sums of money. Difficult questions have to be resolved about how to deal with soft money and independent expenditures. Some of these outcomes are constrained by constitutionally based court decisions.
But not withstanding the nay-sayers who say public financing is dead on arrival, we should remember that we once had a system where private citizens and political parties printed their own ballots. It later became clear that to protect the integrity of the electoral process ballots had to be printed and paid for by the government. For the same reason the public treasury pays for voting machines, polling booths and registrars and the salaries of elected officials. In conclusion, we take it as a fundamental premise that elections are a public not a private process a process at the very heart of democracy. If we are fed up with a system that allows too much private influence and personal and corporate wealth to prevail. Then we should complete the task by making public elections publicly financed.
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Mr. CANADY. Mr. Briffault.
STATEMENT OF RICHARD BRIFFAULT, COLUMBIA LAW SCHOOL
Mr. BRIFFAULT. Thank you very much, Mr. Chairman. I am honored by your invitation to testify here today on this extremely important issue. In my prepared testimony, I have given an overview of congressional regulatory authority in this area and then turn to three specific areas which have been the subject of considerable debate: express advocacy, soft money and independent expenditures.
My guess is given the red and green lights, I will be lucky to get through one of those before the red light goes on. So I thought I would give a general overview consisting of the introduction and then, hopefully, have a brief discussion of issue advocacy.
Elections: In our representative democratic system, elections play the crucial role in creating the government, in electing the officials who make and enforce the laws that bind us all. The Supreme Court has recognized that campaign finance laws can play an important role in assuring that elections actually play their role of creating a democratic representative government.
First, in Buckley v. Valeo and later cases, the Court has recognized that Congress may require the participants in the Federal election campaigns to report their contributions and expenditures and disclose the sources of campaign donations. Buckley gave great weight to the role of reporting and disclosure in informing voters.
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Disclosure, said the Court, provides the electorate with information as to where political campaign money comes from and how it is spent. It allows voters to place each candidate in the political spectrum more precisely than is often possible solely on the basis of party labels and campaign speeches.
In Buckley, the Court also recognizes that campaign contributions do raise the prospect of undue influence on the behavior of government officials after the election, and more accurately between the elections; that is that campaign contributions can create an appearance of corruption that can undermine the legitimacy of government in the eyes of the people.
The Court indicated that Congress can deal with the problem of the potential for corruption and the appearance of corruption by imposing limits on campaign contributions, including dollar limits on the amounts individuals can make to candidates through political action committees and parties, and limits on the amount that intermediate organizations can also make to candidates, as well as aggregate limits on the total any individual can contribute.
The Court has also sustained laws that completely prohibit business corporations from making contributions or expenditures from their treasury funds. And, finally, in the area of dealing with the potential for corruption or the appearance of corruption, the Court has indicated that Congress can provide public funds to candidates and parties with accompanying restriction. It can require those who accept those funds to also accept certain limitations, again, the provision of public funding being something which can reduce the danger of corruption or the appearance of corruption.
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Against that backdrop it may be worth thinking about the issues posed by express advocacy and so-called issue advocacy. Recent elections have witnessed an explosion of so-called issue advocacy; that is, electoral communications that avoid literal words of advocacy, such as words like ''vote for,'' ''elect'' or ''vote against,'' but contain electioneering messages.
An estimated $135 to $150 million was spent on so-called issue advocacy in 1996, and between $275 million and $340 million was spent on issue advocacy in 1998. In some races, issue advocacy swamped spending by the major party candidates. These are all estimated numbers in part because issue advocacy need not be reported.
Issue ads are often indistinguishable from advertising that contains literal words of advocacy. The vast majority of issue ads refer to candidates by name; very few refer to pending legislation. Yet the contributions that fund issue advocacy campaigns are exempt from the Federal Election Campaign Act's reporting and disclosure requirement, are exempt from the dollar limits on individual and PAC donations, and are exempt from the prohibition on the use of corporate and union treasury funds. The dramatic growth of so-called issue advocacy makes a mockery of the Federal Election Campaign Act's requirements and restrictions.
Why has so-called issue advocacy become such an important factor in Federal election campaigns? Buckley v. Valeo upheld the power of Congress to limit contributions. The Federal Election Campaigns Act requires the reporting and disclosure of contributions and expenditures. But the broad language Congress used in the original Federal Election Campaign Act to define election-related financial activity appeared to the Court to raise the danger of regulating political activity generally.
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To save FECA from invalidation, the Court limited its scope by drawing a line between elections and other political activity. The Court sought a standard that would both, one, clearly distinguish between election campaigning and other political speech, and, two, be based on the content of the communication, rather than administrative or judicial probing of the intention of the speaker.
The Court interpreted the Federal Election Campaign Act to apply only to express advocacy of the election or defeat of a clearly identified candidate for Federal office, but the Court gave little attention to the meaning of express advocacy.
Since then, the lower Federal courts in most cases have insisted on an extremely literal definition of the term. As a result, the phrasing commonly used is a so-called ''magic words'' test. Most lower courts have insisted on so-called magic words of advocacy; that is ''vote for,'' ''vote against,'' ''elect,'' in order to treat an ad as express advocacy. Such a test is an open invitation to evasion.
It is child's play for campaign professionals to develop ads that effectively advocate or oppose the cause of the candidate but fall short of literal advocacy. The most common tactic is to include some language calling for the listener or viewer to respond to the message by doing something other than voting. By combining sharp criticism of a candidate with an exhortation to call the sponsor or the candidate criticized, these ads can inoculate themselves from regulation.
What, if anything, constitutionally can be done about so-called issue advocacy? Congress can redefine express advocacy to deal with many of the instances of so-called issue advocacy that have occurred in recent years provided it addresses the Supreme Court's principal concerns in this area, the avoidance of vagueness, the avoidance of overbreadth, and the avoidance of probing the intentions of the speaker or sponsor of a message. The congressional definition of express advocacy must be clear, tightly focused on election-weighted activity and based on objective criteria.
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This suggests two possible statutory approaches. First, Congress could determine that all advertising that clearly identifies a candidate for Federal office within a tightly defined time period before Election Day is express advocacy. Such a definition avoids vagueness, is focused on election-related activity and is entirely objective.
Is it proper to define a message as election-related because of timing? Surely the timing of the message affects its meaning. An election eve advertisement that refers to a candidate is likely to be perceived by the voters as election-related, even if the message refrains from the magic words of literal advocacy. The immediate preelection period is the high point of the election campaign, and voters are most likely to be considering their Election Day decisions, when most political activity is focused on the election. It is unlikely that an advertisement in this period would have any impact on political activity other than on the election itself, even if the ad fails to literally advocate a voting result.
Second, Congress can provide that any communication coordinated with a candidate's campaign is subject to reporting and disclosure requirements and contribution restrictions even if the communication avoids literal words of advocacy.
As a constitutional matter, coordinated communications are tantamount to contributions to a candidate's own campaign and can be treated as express advocacy regardless of their content.
I will stop at the red light. I will be happy to answer any questions later.
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Mr. CANADY. Thank you very much.
[The prepared statement of Mr. Briffault follows:]
PREPARED STATEMENT OF RICHARD BRIFFAULT, COLUMBIA LAW SCHOOL
Mr. Chairman, I am honored by your invitation to testify before the Subcommittee concerning the authority of Congress to regulate federal election campaigns.
By way of introduction, I am Vice-Dean and Joseph P. Chamberlain Professor of Legislation at Columbia Law School, where I am also Executive Director of the Legislative Drafting Research Fund. From January 1997 to the present, I have served as the Executive Director of the Special Commission on Campaign Finance Reform of the Association of the Bar of the City of New York. The testimony I am about to give reflects my views and not those of the Special Commission or of the City Bar Association.
You have asked me to focus my testimony on the authority of Congress to regulate federal election campaigns. I will begin by providing an overview of Congressional regulatory authority and then turn to three specific areas that have been the subject of considerable debate in recent years: the definition of express advocacy, soft money, and independent expenditures.
I. CONGRESSIONAL AUTHORITY IN GENERAL
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Congressional authority to regulate federal election campaigns is framed by the Supreme Court's 1976 decision in Buckley v Valeo and by later cases, dealing with state and local campaign finance laws as well as the Federal Election Campaign Act (FECA). The Supreme Court has affirmed four broad Congressional powers to regulate campaign finance activities.
First, Congress may require the participants in federal election campaigns to report their contributions and expenditures and disclose the sources of campaign donations. Buckley gave great weight to the role of reporting and disclosure in informing voters. ''Disclosure,'' said the Court, ''provides the electorate with information 'as to where political campaign money comes from and how it is spent by the candidate' in order to aid the voters in evaluating those who seek . . . office. It allows voters to place each candidate in the political spectrum more precisely than is often possible solely on the basis of party labels and campaign speeches.''
Second, Congress can limit campaign contributions. Specifically, the Court has upheld dollar limits on the contributions an individual can make to candidates, political action committees (PACs), and political parties; limits on the contributions that PACs can make to parties and candidates; limits on the contributions that parties can make to candidates; and limits on the contributions an individual can make to candidates, PACs and parties in the aggregate.
Third, Congress may completely prohibit business corporations from making contributions or expenditures. In Austin v Michigan Chamber of Commerce, the Court found that limits on corporations are justifiable ''to ensure that substantial aggregations of wealth amassed by the special advantages which go with the corporate form of organization . . . [are] not converted into political 'war chests.'' ' The Court has never considered the comparable limitations on labor unions, but it has generally been assumed that such restrictions are constitutional.
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In this context, the Court has also upheld Congressional regulation of the relations between corporations and unions and their PACs. In particular, the Court has upheld the Congressional power to limit the persons who can be solicited by a PAC sponsored by a corporation or a union and to limit the amount individuals can contribute to a PAC.
Fourth, Congress can provide public funds to candidates or parties. Congress can limit public funding to those candidates who raise a threshold level of contributions, and can vary the level of public funding according to a candidate's ability to raise private funds or according to past political success of the party that nominated the candidate. More importantly, Congress can require a candidate to accept spending limits as a condition for the receipt of public funds.
II. EXPRESS ADVOCACY AND SO-CALLED ISSUE ADVOCACY
Recent elections have witnessed an explosion of so-called issue advocacy, that is, electoral communications that avoid literal words of advocacy—that is, words like ''vote for,'' ''elect'' or ''vote against''—but contain electioneering messages. The Annenberg Public Policy Center estimated that between $135 and $150 million was spent on so-called issue advocacy in the 1996 elections, and that between $275 million and $340 million was spent on issue advocacy in the 1998 elections. In some races, issue advocacy spending swamped spending by the major party candidates.
Issue ads are often indistinguishable from advertising that contains literal words of advocacy. The vast majority of issue ads refer to candidates by name; very few refer to pending legislation. Most ads are closely aligned with the interests of the major party candidates. Indeed, in the last two elections, the two major parties accounted for more than half of the issue advocacy spending, with party issue advocacy accounting for 70% of total issue advocacy advertising in the two months preceding the 1998 general election.
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The contributions that fund issue advocacy campaigns are exempt from FECA's reporting and disclosure requirements, exempt from the dollar limits on individual and PAC donations, and exempt from the prohibition on the use of corporate and union treasury funds. The dramatic growth of such issue advocacy makes a mockery of FECA's requirements and restrictions.
Why has so-called issue advocacy become such an important factor in federal election campaigns? Buckley determined that Congress could impose limits on contributions for federal election campaigns and could require the reporting and disclosure of contributions and expenditures in federal elections. The broad language Congress used in FECA to define election-related financial activity, however, appeared to the Court to raise the danger of regulating political activity generally. To save FECA from invalidation, the Court sought to limit its scope. Acknowledging the difficulty of drawing a line between elections and other political activity, the Court nevertheless sought a standard that would both (i) clearly distinguish between election campaigning and other political speech and (ii) be based on the content of the communication, rather than administrative or judicial probing of the intention of the speaker.
The Court interpreted FECA to apply only to ''express advocacy'' of the election or defeat of a clearly identified candidate for federal office. But the Court gave little attention to the meaning of ''express advocacy.'' Nor has Congress returned to the question to provide a definition of ''express advocacy'' that would address the Court's constitutional concerns. The definition of express advocacy has been left to the lower federal courts. They have in most cases insisted on an extremely literal definition of the term.
This tendency is well-illustrated by Federal Election Commission v Christian Action Network—a case that considered a 1992 television advertisement that referred to candidate Bill Clinton's support for ''radical homosexual causes,'' presented ''a series of pictures depicting advocates of homosexual rights . . . demonstrating at a political march,'' and combined ''the visual degrading of candidate Clinton's picture into a black and white negative,'' ''ominous music,'' and ''unfavorable coloring'' in a manner that ''raised strong emotions [among] viewers.'' The ad named Clinton, used his picture, and was aired immediately before the 1992 general election. The district court determined the message was ''openly hostile'' to the gay rights positions it attributed to Clinton. But the district court and the Fourth Circuit court of appeals both concluded that the ad did not constitute express advocacy of Clinton's defeat because the ad did not expressly exhort the public to vote against him. The Court of Appeals even slapped the Federal Election Commission with attorneys' fees and costs for bringing the case.
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Most of the lower federal courts have followed the Fourth Circuit in requiring ''magic words'' of advocacy in order to treat an ad as express advocacy. Such a test is an open invitation to evasion. It is child's play for campaign professionals to develop ads that effectively advocate or oppose the cause of a candidate but fall short of literal advocacy. The most common tactic is to include some language calling for the listener or viewer to respond to the message by doing something other than voting. In Christian Action Network, for example, the ad called on viewers to telephone the sponsor for more information. Other ads urge voters to telephone the candidate targeted by the sponsor. By combining sharp criticism of a candidate with an exhortation to call the sponsor or the candidate criticized, these ads can inoculate themselves from regulation.
The express advocacy/issue advocacy problem cries out for Congressional action. The Federal Election Commission has attempted to develop rules in this area, but the FEC advisory opinions and regulations lack the legitimacy and constitutional weight of an act of Congress.
What, constitutionally, can be done about so-called issue advocacy? Any legislation should reflect the Supreme Court's principal concerns in this area: the avoidance of vagueness, the avoidance of overbreadth, and the avoidance of probing the intentions of the speaker or sponsor of a message. The Congressional definition of express advocacy should be clear, tightly focused on election-related activity, and based on objective criteria. This suggests two possible statutory approaches.
First, Congress could determine that all advertising that clearly identifies (by name or likeness) a candidate for federal office within a tightly defined time period before Election Day, such as thirty days, is express advocacy. Such a definition avoids vagueness, is focused on election-related activity, and is entirely objective.
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Is it proper to define a message as election-related because of its timing? Surely the timing of a message affects its meaning. An election-eve advertisement that refers to a candidate is likely to be perceived by the voters as election-related even if the message refrains from literal words of advocacy. The immediate pre-election period is the high point of the election campaign, when the voters are most likely to be considering their Election Day decisions, and when most political activity is focused on the election. It is unlikely that a communication referring to a candidate that is disseminated in this period will have any impact on political activity other than the election itself, even if the communication fails to literally advocate a voting result.
Second, Congress can provide that any communication coordinated with a candidate's campaign is subject to reporting and disclosure requirements and contribution restrictions even if the communication avoids literal words of electoral advocacy. Coordination provides an objective indication that the message is election-related. Buckley stated that ''[t]he absence of prearrangement and coordination of an expenditure with the candidate or his agent not only undermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.'' Conversely, a coordinated communication, even one that avoids literal words of advocacy, can be quite valuable to the candidate and can be the basis for an improper commitment. As a constitutional matter, coordinated communications, like communications from the candidate's own campaign, can be treated as express advocacy regardless of their content.
III. SOFT MONEY
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Soft money is largely a product of the advisory opinions of the FEC that permit political party committees to accept funds that would violate FECA's contribution restrictions as long as those funds are allocated to the support of nonfederal candidates.
Soft money is also, to some extent, an artifact of federalism and of the gap between federal and state campaign finance restrictions. Parties may support both federal and nonfederal candidates. Federal law is appropriately focused on campaigns for federal office, yet some activities on behalf of state candidates will inevitably affect federal election campaigns. Moreover, many states have no limits on contributions by individuals, PACs, corporations and unions, and some state limits are much higher than the federal. This means that money that could not be used in federal election campaigns may have an impact on those campaigns.
Soft money has increased dramatically in recent elections. Federal officeholders, federal candidates and the national party committees have become aggressively involved in soliciting contributions for party soft money accounts and in steering donations to state party committees.
What, constitutionally, can be done about soft money? Congress may prohibit national party committees and their officials and agents from soliciting, receiving or directing to another person a contribution—or making an expenditure—that is not subject to the limits, prohibitions, and reporting requirements of FECA. The Supreme Court has upheld Congress' power to regulate contributions to candidates, and to regulate contributions to organizations that contribute to candidates. The central purpose of the national party committees is the election of party candidates. Donations to a national party committee can be an indirect way of supporting and of seeking to influence the party's candidates. Consistent with Buckley, such donations need to be reported and disclosed, and may be limited to avoid corruption or the appearance of corruption.
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Similarly, Congress may prohibit federal officeholders and candidates for federal office s from soliciting, directing, transferring or spending funds for federal election activity unless those funds satisfy the limitations, prohibitions, and reporting requirements of FECA. The dangers of corruption and the appearance of corruption are particularly acute when federal officeholders and candidates are directly involved in fundraising.
The regulation of state and local party activity is more problematic. Barring soft money contributions to the national parties is likely to lead to a shift in soft money donations to state and local parties. Indeed, more and more soft money consists of national party transfers to state and local parties. This is because the FEC's allocation rules usually permit a state or local party committee to pay for a higher percentage of its activities that benefit both federal and nonfederal candidates with soft dollars than it allows the national party committees. Although Congress can certainly regulate state party activity on behalf of candidates for federal office including activities that benefit both federal and nonfederal candidates, considerations of federalism militate against extensive federal regulation of state and local party activities that benefit nonfederal candidates.
Rather than a complete ban on the use of soft money for the funding of shared federal/nonfederal activities, Congress might want to legislate a formula for determining the portion of shared activities that can be funded by soft dollars. Currently, the FEC relies on the ''ballot composition'' method, which determines the federal and nonfederal (or hard dollar/soft dollar) allocation of state party spending according to the percentage of positions on the ballot which are for federal and for nonfederal offices. This tends to grossly overweight the nonfederal share. Congress can adopt a formula, or direct the FEC to do so, that more effectively limits state party use of soft money for mixed federal/nonfederal activities without prohibiting use of soft money completely.
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To say that Congress may regulate soft money is not to disparage the critical role that political parties play in our system. Parties register and mobilize voters, and provide valuable campaign resources to candidates. The major parties have a broader base and broader interests than most other groups. Indeed, as a policy matter there is much to be said for a significant party role in the campaign finance process. This could justify, for example, raising the limits on hard money donations to parties or exempting donations to parties from the aggregate ceiling on individual donations.
Nonetheless, the existing system for channeling funds to parties—tight hard money limits accompanied by unlimited soft money donations—makes a mockery of the Federal Election Campaign Act, and undermines the legitimate goals of campaign finance regulation, particularly the limitations on special interest influence. In addition, the extreme complexity of the existing system, with parties creating multiple federal and nonfederal accounts, and transferring funds among these accounts and to state and local parties, undermines the goal of providing the public with a clearer understanding of the sources of funding for elections.
IV. INDEPENDENT SPENDING
Buckley held that Congress may not limit independent expenditures, that is, expenditures not in ''cooperation, consultation, or concert'' with a candidate. At the time Buckley was decided independent expenditures were quite rare. They have become far more common in the past two decades. In the process, independent expenditure campaigns have demonstrated that despite Buckley's presumption that such expenditures were likely to be of little benefit to a candidate, such expenditures can, in fact, be quite valuable to the candidates they are intended to assist. The last two decades have also shown that there can be relations between candidate committees and independent committees that fall short of ''cooperation, consultation, or concert'' but that enable independent committees to undertake spending programs that benefit those candidates.
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In 1996 in Federal Election Commission v. Colorado Republican Federal Campaign Committee a fragmented Supreme Court determined that a party committee expenditure that was not in fact coordinated with a candidate is a constitutionally protected independent expenditure. Colorado Republican led to an immediate surge in party independent spending in 1996, but ultimately its role was limited because the parties chose to channel more of their candidate-oriented activity into issue advocacy rather than independent spending. Should Congress decide to regulate issue advocacy, the role of independent spending, particularly party independent spending, would most likely grow.
What, constitutionally, can Congress do about independent expenditures? First, Congress can clarify which expenditures are considered to be independent. Individuals and groups have a constitutional right to engage in unlimited independent spending in support of or opposition to a candidate because the independence of the speaker is said to remove the danger of a quid pro quo. But that is only true when the speaker is truly independent of the candidate benefitted by the campaign activity. If there is tacit or informal coordination between a candidate and an independent individual or group, the spending is no longer ''independent'' but ought to be treated as a contribution. Neither the Supreme Court nor Congress has articulated a test for determining when expenditures are independent. Congress can, and should, do so.
Second, Congress particularly needs to act on the question of party independent expenditures. Colorado Republican determined that some party spending could be independent; but it said nothing about when party spending would be considered independent. Colorado Republican was decided on unusual facts: neither party had nominated a candidate for the open Senate seat at issue. More commonly, one or both major parties will have a candidate who is the intended beneficiary of that party's spending.
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Given the close relationship that generally exists between a party and its candidate, truly independent party spending is likely to be rare. Congress can adopt rules that spell out, and limit, the scope of the Colorado Republican exemption from FECA's controls on coordinated expenditures. For example, Congress could provide that once a party has made a direct contribution to, or a coordinated expenditure with, a candidate, then all subsequent expenditures by party committees supporting that candidate ought to be treated as coordinated, not independent. Similarly, Congress could provide that once a party has nominated a candidate then all party expenditures supporting that candidate are presumptively coordinated, not independent.
As with soft money, there is a case for allowing the parties to play a major role in funding elections. This might lead to a relaxation of the limits on coordinated expenditures. But where limits are in place or, as with the publicly funded presidential election system, the limits are basic to the existing regulatory structure, those limits ought to be honored and enforced. Congress can address Colorado Republican by specifying the circumstances in which party spending will be deemed independent.
The three phenomena I have addressed—issue advocacy, soft money, and independent spending by individuals, groups or parties who are not truly independent of the candidates they support—each represent profound threats to the campaign finance system enacted by Congress in 1974 and sustained by the Supreme Court in 1976. Congress has power to address each of these issues. Indeed, in each of these three areas, Congressional action is both necessary and appropriate not to increase the regulation of campaign finances or to change the campaign finance system but, rather, to restore the Federal Election Campaign Act as it stood following the Buckley decision.
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Thank you again for inviting me to testify today.
Mr. CANADY. Mr. Pilon.
STATEMENT OF ROGER PILON, DIRECTOR, CENTER FOR CONSTITUTIONAL STUDIES, CATO INSTITUTE
Mr. PILON. Yes, thank you very much, Mr. Chairman. And as I mentioned to you before we went on, I have to leave at 4:30 if we haven't wrapped up by then, to coach my son's baseball game. I mean by that no disrespect to the committee, it is simply the priorities that I have as a father—priorities that you, Mr. Chairman, as a new father, must surely already understand.
Let me thank you, Mr. Chairman, for your kind invitation to testify here today. I also want to commend you for focusing upon the larger issues as you have in this committee. So often Congress gets caught up in the trees, rather than see the forest of an issue. This is a hearing that is focused upon the larger, constitution—or as you put it in your opening remarks, we are trying to establish the legal framework for reform proposals, and it is extremely important that we do that before we consider particular proposals.
Now in that connection, I want to suggest that we start with first principles, and among the first principles of this Nation certainly are that individuals and organizations have a right to associate, to spend their money in any way they wish, and to speak freely, providing they don't violate the rights of others in the process. That much is certainly implied by the Declaration of Independence.
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Unfortunately, we have honored those principles more in the breach especially over the course of the 20th century. But in one area we have largely resisted that pattern, or, more precisely, the Supreme Court has stood its ground and protected us from ourselves, so to speak, by protecting certain freedoms as they were meant to be protected, and that area is, of course, speech.
Yet for some time now we have heard a chorus of calls in Congress and in the Nation for campaign finance reforms that would almost certainly compromise political speech and the first amendment. Now at a general level, I support that chorus, for there is something fundamentally wrong with the way we finance our campaigns in America. But the reforms I would advocate, as I will mention toward the end of my remarks, would take us in a very different direction than that charted by most others in the chorus. Indeed, many of the problems that most reformers see in our present arrangements are the products of earlier reforms. Thus, if we are serious about addressing those problems, we should look at those earlier reforms.
Far from needing further restrictions on political speech, we need fewer. What is striking, however, about so much of the recent debate is how little of it takes that direction or even notices the manifest constitutional impediments to more restrictive campaign reforms. You can read whole tracts on campaign finance reform and barely see the word ''Constitution'' mentioned.
Now, plainly the Constitution authorizes Congress to regulate elections. But just as plainly, that regulation must be constrained by the first amendment is protections for free speech, association, and so forth. As Commissioner Mason put it, it is not just speech that is implicated here, it is a whole cluster of first amendment issues that is implicated.
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As we know, it is the Buckley framework and the Buckley v. Valeo decision that frame all of our discussion, and the Court said in their decision that contributions and expenditures are speech, and that any restrictions on them will be subject to strict scrutiny by the Court, meaning that those restrictions must serve a compelling governmental interest and be narrowly tailored to serve that interest; and, accordingly, they found restrictions on expenditures to be unconstitutional, whereas restrictions were found to be constitutional.
That distinction has, of course, come in for a great deal of criticism since then, and I myself am of the view that it will not withstand serious scrutiny. Indeed, in the recent Colorado case in 1996, four members of the Court raised serious questions about that very distinction.
Nevertheless, the one compelling interest that the Buckley Court did find to sustain regulation was the prevention of corruption or the appearance of corruption, by which it meant quid pro quo corruption—the exchange of political favors for financial contributions.
And, indeed, it repeated that point more recently in the Citizens against Rent Control v. Berkeley case in 1981, where the Court said that corruption remains the ''single narrow exception to the rule that limits on political activity'' are contrary to the first amendment.
Now, when you apply the Buckley framework and the Buckley pronouncements to the proposals that have come before the Congress in recent years—treating them generically such as a PAC ban, a PAC fallback ban, and so forth what you discover is that each of them is fraught with constitutional infirmity.
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In my prepared testimony I have gone into each of those proposals again, treated generically. Here I will just focus on a couple of; namely, the limits on soft money, and issue advocacy, because these get most of the attention.
Now, the recent distress of reformers over soft money that is, money contributed to political parties for other than candidate-oriented advertising is rooted in the belief that such contributions, because they are unlimited and unregulated, invite wholesale evasion of the the contribution limits now in place. They do. Indeed, such evasion is exactly what one would expect to find when people are prohibited from contributing in more direct ways to candidates of their choice.
The solution to the problem of evasion, however, is not to ban or limit soft money, which would be patently unconstitutional, but to eliminate, or at least raise the limits on, direct contributions. This is a point that Commissioner Mason raised. What they are seeing is more ''substitute contributions,'' which is nothing more than an attempt to find some way to get around those grossly unrealistic limitations.
So without constitutional merit is the attack on soft money, in fact, that four Justices in the Colorado case went so far as to say that given the practical identity of interests between party and candidate during an election, the corruption-prevention rationale for sustaining limitations on contributions did not support any limits on party spending, whether coordinated with the candidate or not.
Because the red light is on, I will skip over my remarks on issue advocacy. I think Laura Murphy has addressed them very nicely, and I am sure in her prepared testimony she has done so even more.
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So let me get right to the point in deference to the shortness of time. My own view is that there is already a bill that is being passed through Congress for signatures, a bill that was in the last Congress, which addresses what really needs to be done here. It is the aptly named Doolittle bill, named after John Doolittle of California, which had 70 signatures in the last Congress; and essentially what this bill would do is remove the campaign contribution limits now in place and require instead that candidates and parties promptly report their financial transactions to the Federal Election Commission for disclosure to the public.
The fear repeatedly heard, of course, is that money corrupts politics, and in response, Congress severely limited the amount that could be contributed. But let us ask ourselves just what is being said here when a Congressman says, money corrupts politics. Is he saying that he would be corrupted by large contributions? Of course he is not saying that. Is he saying, well, my colleagues would be corrupted; I wouldn't be corrupted, but my colleagues would?
Well, it is doubtful that he is saying that; and if he is saying anything like that, presumably then we ought to invite the Department of Justice over to have a look at what is going on here. Those, of course, are the kinds of questions that are raised by such complaints. The money complaint is a red herring. Study after study has shown that the kind of corruption that is feared just simply does not take place. Party affiliation, ideology and constituencies are the three dominant factors in determining how Congressmen vote.
I am sure I do not have to instruct you on this point. It is a point that is very familiar to all of you. And so I think that we can sum this up very nicely, this constitutional aspect of the issue, by citing none other than Representative Richard Gephardt, who Time magazine cited in 1997 as saying, ''When it comes to freedom of speech and our desire for healthy campaigns in a healthy democracy, you cannot have both.''
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Mr. Gephardt was wrong in saying that we cannot have both, but he was right to suggest that further restrictions would compromise free speech. It is disheartening, however, to see that he would choose those restrictions over freedom. Fortunately, the Constitution remains the supreme law of the land. Thank you.
Mr. CANADY. Thank you, Mr. Pilon.
[The prepared statement of Mr. Pilon follows:]
PREPARED STATEMENT OF ROGER PILON, DIRECTOR, CENTER FOR CONSTITUTIONAL STUDIES, CATO INSTITUTE
Mr. Chairman, distinguished members of the subcommittee:
My name is Roger Pilon.(see footnote 7) I hold the B. Kenneth Simon Chair in Constitutional Studies at the Cato Institute and am the director of Cato's Center for Constitutional Studies.
I want to begin by thanking Chairman Hyde of the Committee on the Judiciary for inviting me to testify before the Subcommittee on the Constitution on the important issue before us today, ''The First Amendment and Restrictions on Political Speech.'' And let me add that I am especially heartened by the fact that these hearings have been called not on the issue that we all know is driving them—the many bills that have been proposed recently to reform our campaign finance law, which would implicate political speech and hence the First Amendment—but on the more fundamental, generic issue. Too often Congress focuses on the ''trees'' that constitute an issue while ignoring the larger constitutional forest. These hearings are a refreshing exception to that pattern.
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FIRST PRINCIPLES
The place to start, then, is with the first principles of the matter. In a free society, individuals and organizations are and ought to be free to associate in any way they wish, to speak as they wish, and to spend their money as they wish, provided only that in the process they respect the rights of others to do the same. The Declaration of Independence implies as much when it speaks of our unalienable rights to life, liberty, and the pursuit of happiness. And it goes on to say that the purpose of government is to protect that liberty by securing those rights.
Unfortunately, over the course of our history, and especially over the 20th century, we have too often ignored those principles as we have asked government to become increasingly involved in our everyday affairs. The result of our constant quest for government ''solutions'' to social, economic, and personal problems is the modern redistributive and regulatory state.
In one area, however, we have largely resisted that pattern—more precisely, the Supreme Court has stood its ground and protected us from ourselves, so to speak, by protecting certain freedoms as they were meant to be protected. That area is speech. Citing the First Amendment, especially over the course of this century,(see footnote 8) the Court has crafted a free speech jurisprudence that is robust and, for the most part, correct. And in doing so, the Court has made it clear that political speech, especially, was what the Founders had in mind when they wrote the First Amendment.
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Yet for some time now we have heard a chorus of calls in Congress(see footnote 9) and in the nation(see footnote 10) for campaign finance ''reforms'' that would almost certainly compromise political speech and hence the First Amendment. At a general level, I join that chorus, for there is something fundamentally wrong with the way political campaigns in America today are financed. But the reforms I would advocate would take us in a very different direction than that charted by most others in the chorus. Indeed, many of the problems that most reformers see in our present arrangements are the products of earlier reforms. Thus, if we are serious about addressing those problems we should look first to those earlier reforms. Far from needing further restrictions on political speech, we need fewer. Deregulation not only would be consistent with the Constitution but would solve the problems regulation brought into being. Here, as in so many other areas, the Founders had the better of it when they set us on a course of freedom rather than regulation.
What is striking about so much of the recent debate, however, is how little of it takes that direction—or even notices the manifest constitutional impediments to more restrictive campaign reforms. Indeed, the idea of such impediments often arises only as an afterthought, if it arises at all. That is a deeply disturbing fact about so much of our political life today. For in a republic such as ours, where the Constitution not only authorizes but limits government, one should expect constitutional questions to come first. Those questions are: (1) Does Congress have the power to do what some among it want done? and (2), If so, can that be done consistent with the rights of the American people? Those questions will guide my analysis here.
Plainly, in Article I, section 4, and Article II, section 1, the Constitution authorizes Congress to regulate federal elections. But, just as plainly, that regulation must conform to restraints imposed by the First Amendment to the Constitution. And here, the Supreme Court has said repeatedly that, under the First Amendment, campaign contributions and expenditures are protected speech.
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More precisely, the Court has said that regulations of political contributions and expenditures will be upheld only if they achieve a compelling governmental interest by the least restrictive means—the most difficult of constitutional hurdles. That jurisprudence was examined recently in two Cato studies—one by Professor Lillian R. BeVier of the University of Virginia School of Law,(see footnote 11) the other co-authored by attorneys Douglas Johnson of the National Right to Life Committee and Mike Beard of the Coalition to Stop Gun Violence(see footnote 12)—both of which concluded that most of the campaign finance reform proposals recently before Congress will not pass constitutional muster. Because I find the arguments and conclusions of those studies compelling, I will simply summarize them here. I will then return to the issue of real reform.
BACKGROUND
Modern federal election campaign finance regulation stems from the Federal Election Campaign Act of 1971 (FECA), as amended in 1974.(see footnote 13) Two years later, in the landmark case of Buckley v. Valeo,(see footnote 14) the Supreme Court struck down many of the 1974 revisions as impermissible under the First Amendment.
Since then the Federal Election Commission (FEC) has fought to close the perceived ''loopholes'' created by Buckley. In response, the Court has repeatedly held that the First Amendment is not a loophole.(see footnote 15) In 1996, for example, the Court held 7 to 2 in Colorado Republican Federal Campaign Committee v. FEC(see footnote 16) that independent expenditures by political parties cannot be limited by Congress. Then in April 1997, as if to underscore the long series of cases since Buckley, the Fourth Circuit took the extraordinary step of ordering the FEC to pay the legal fees incurred by the Christian Action Network in defending itself from an FEC lawsuit.(see footnote 17)
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Yet despite that string of cases, now spanning more than two decades,(see footnote 18) many in Congress persist in believing that they have the power to restrict what the First Amendment plainly protects. It is thus worth examining, if only in outline, just why the Constitution does not permit such restrictions.(see footnote 19)
THE BUCKLEY FRAMEWORK
As the Court held in Buckley, to be constitutional, campaign finance regulations must not violate basic principles of political freedom and free political speech recognized and protected by the First Amendment. The plaintiffs in Buckley had challenged FECA's stringent limitations on the amounts of money individuals could contribute to and spend on campaigns for federal office and the act's provisions for public funding of presidential candidates who agreed to abide by spending limits during their campaigns. The Court sustained the provisions for public funding of presidential campaigns and the contribution limitations. It invalidated the expenditure limitations.
A ''major purpose'' of the First Amendment, the Buckley Court said, was ''to protect the free discussion of governmental affairs.'' In that regard, contribution and expenditure limitations ''operate in an area of the most fundamental First Amendment activities.''(see footnote 20) Thus, limitations are subject to strict judicial scrutiny: they must serve a ''compelling state interest'' and employ the ''least restrictive means.''
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Applying that strict standard of review, the Buckley Court distinguished limits on contributions to campaigns and limits on expenditures by citizens and candidates. Contribution limits, said the Court, entail ''only a marginal restriction on the contributor's ability to engage in free communication''(see footnote 21) because ''the transformation of contributions into political debate involves speech by someone other than the contributor.''(see footnote 22) Expenditure limits, by contrast, ''represent substantial rather than merely theoretical restraints on the quality and diversity of political speech.''(see footnote 23)
Whether that distinction will itself withstand strict scrutiny has been a matter of no small debate. In fact, in the recent Colorado case, Justice Thomas joined the many critics who would give contributions the same protection expenditures enjoy. Thus, the Court may one day revisit its distinction. In the meantime, it has upheld contribution limitations if their purpose is the compelling one of preventing corruption—''the attempt to secure a political quid pro quo from current or potential officeholders''(see footnote 24)—or the appearance of corruption. In fact, the Court has since said that preventing corruption or the appearance of corruption remains the ''single narrow exception to the rule that limits on political activity'' are contrary to the First Amendment.(see footnote 25)
APPLYING BUCKLEY TO RECENT PROPOSALS
Since the Buckley Court agreed unanimously that campaign finance regulations implicate protected First Amendment rights, the basic questions in applying Buckley and its progeny are whether the interests the government asserts by way of justifying a given measure are compelling and whether the least restrictive means have been employed to secure those interests. Although applying ''strict scrutiny'' to the proposals recently before Congress is not an exact science, the result of doing so should be relatively clear: if Congress enacts such measures, the Court is not likely to uphold them. Let us look briefly at those measures, taken generically.
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The PAC Ban. Those who advocate banning Political Action Committees, or ''PACs,'' ordinarily invoke vague concerns about ''big money'' and ''special interests,'' the implication being that such PACs unduly influence elections in order to advance their own narrow ends. Never mind that PACs arose in the first place as a result of the 1974 FECA restrictions; never mind also that empirical studies show that such contributions rarely buy elections, much less the votes of incumbents once in office:(see footnote 26) the rationales given by PAC ban advocates simply do not amount to the prevention of corruption as the Court has strictly defined it—a financial quid pro quo, dollars for political favors. Moreover, even if a PAC ban could be justified as serving a compelling governmental interest along the lines the Court has established, the means employed, far from being narrowly tailored, are grossly overinclusive. In a word, people and organizations have a right to join together to enhance their political voices. Prohibiting such activities strikes at the very heart of the First Amendment.
The PAC Ban Fallback. Assuming that a PAC ban would be found unconstitutional, reformers have advocated a number of fallback proposals, including lowering the permissible amount of PAC contributions from $5,000 to $1,000 per election and prohibiting PAC contributions that raise a candidate's PAC receipts above 20 percent of campaign expenditure ceilings. Here too, however, the same constitutional infirmities arise. Lowering PAC contributions allegedly serves the same interests as eliminating them, yet in neither case are those interests compelling. Moreover, the means are again not narrowly tailored. Indeed, it is difficult to identify any interest—other than incumbency protection—that is served by making it more rather than less difficult for candidates to raise money.
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It should be noted, however, that the Buckley Court, even as it upheld the particular contribution limits at issue, ''cautioned . . . that if the contribution limits were too low, the limits could be unconstitutional.''(see footnote 27) Many have argued that the current $5,000 limit, upheld in 1976, has long been too low to be any longer constitutional.
Finally, the attempt to redefine ''independent expenditure''—and, in particular, to redefine ''express advocacy'' so as to include any and all partisan communications—runs flatly counter to the Buckley Court's explicit effort to immunize issue advocacy from regulation or restriction: ''So long as persons or groups eschew expenditures that in express terms advocate the election or defeat of a clearly identified candidate, they are free to spend as much as they want to promote the candidate and his views.''(see footnote 28)
''Voluntary'' Spending Limits. Because mandatory spending limits face an impenetrable constitutional wall, reformers have proposed various ''voluntary'' limits that a candidate would abide by in exchange for such benefits as ''free'' or reduced-rate television time, reduced mailing rates, raised contribution or expenditure ceilings, and the like—all in the name of ''leveling'' the playing field. The Court has given such proposals short shrift. Indeed, the Eighth Circuit recently noted when evaluating analogous state provisions that one is ''hard-pressed to discern how the interests of good government could possibly be served by campaign expenditure laws that necessarily have the effect of limiting the quantity of political speech in which candidates for public office are allowed to engage.''(see footnote 29) Far from leveling the playing field, such limits only enhance the already substantial advantages of incumbency.
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Limits on ''Soft Money''. The recent distress of reformers over ''soft money''—money contributed to political parties for other than candidate-oriented advertising—is rooted in the belief that such contributions, because they are unlimited, invite a wholesale evasion of contribution limits now in place. They do. Indeed, such evasion is exactly what one would expect to find when people are prohibited from contributing in more direct ways to candidates of their choice. The solution to the problem of evasion, however, is not to ban or limit soft money—which would be patently unconstitutional—but to eliminate or at least raise the limits on direct contributions.
Because soft money, under present arrangements, goes to parties, not candidates, there is no possibility of the kind of quid-pro-quo corruption that alone justifies limits. Thus, any attempt to limit such contributions would not pass even the threshold test the Court has set. Indeed, such limits would strike at the very core of the First Amendment. People contribute to political parties, after all, to advance the ideas for which the parties stand and to encourage and support the political speech that parties promote. If those efforts were thwarted—not to prevent quid-pro-quo corruption but to eliminate the ''appearance'' of corruption—the First Amendment would be utterly eviscerated. The ''appearance'' can be addressed more directly—by eliminating its source in the present law.
So without constitutional merit is the attack on soft money, in fact, that four justices in the recent Colorado case went so far as to say that, given the practical identity of interests between party and candidate during an election, the corruption-prevention rationale for sustaining limitations on contributions did not support any limits on party spending, whether coordinated with the candidate or not. Although present law makes coordinated spending illegal, Justice Thomas pointedly questioned the rationale for that restraint: ''What could it mean for a party to 'corrupt' its candidate or to exercise 'coercive' influence over him.''(see footnote 30) In sum, soft money is not the problem. The present law is the problem.
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Issue Advocacy. Proposals to limit speech that does not ''in express terms advocate the election or defeat of a clearly identified candidate for federal office'' are constitutionally infirm for the same reason that the soft-money ban is infirm: they would regulate—and thus unacceptably chill—core political speech about the merits of policies and the proper resolution of public issues without a corruption-prevention rationale for doing so. To the objection that issue advocates exercise ''undue influence,'' the answers are, that is their right, and we have no measure of just how much influence is ''due.''
Of late, however, those who would expand current law to cover advocacy ads that do not expressly urge support or defeat of a candidate have sought refuge in a case the Ninth Circuit decided in 1987, FEC v. Furgatch.(see footnote 31) That is a dubious shelter, however, for Furgatch was, by the circuit's own reading, a ''very close call.''(see footnote 32) Moreover, its holding that a non-candidate's campaign communication can amount to prohibited ''express advocacy'' for or against a candidate without having used the Buckley buzz words—''vote for,'' ''defeat,'' etc.—is hardly inconsistent with Buckley. The issue in Furgatch was simply whether, under its facts, the advocate was engaged in ''express'' advocacy, even though he did not use the ''express'' words mentioned in Buckley. To read the case as inconsistent with Buckley—and thus as opening the door to overturning Buckley—is grasping at straws, straws that are not even there.
THE SOLUTION: DEREGULATE POLITICAL SPEECH
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As this brief overview of recent ''reform'' proposals suggests, the Supreme Court is not likely to leave any such measures long standing. For they fly in the face of the political freedoms our Constitution was written to protect. There is a measure, however, that will withstand judicial scrutiny, the aptly-named ''Doolittle bill,'' introduced in the 105th Congress as H.R. 965, the ''Citizen Legislature and Political Freedom Act,'' sponsored by Rep. John Doolittle and co-sponsored by 70 other members of the House. In essence, that bill would remove the campaign contribution limits now in place and require instead that candidates and parties promptly report their financial transactions to the Federal Election Commission for disclosure to the public. The bill would, in short, deregulate the process and open it up to the public. Its simplicity is its virtue.
The fear repeatedly heard, of course, is that money ''corrupts'' politics. In response, Congress severely restricted the amount of money that any one individual or group could give to a candidate—limits that have not been changed since they were imposed in 1974—which means that candidates since then have had either to be independently wealthy, to be constantly raising money in small sums, or to be looking for ways around the system. Is it any wonder that no one likes this system.
But the answer to the problems created by the 1974 limits is not more limits. It is to revisit the premise on which those limits rest. Just what is a congressman saying when he complains that money corrupts the process? Is he saying that he would be corrupted by larger contributions? Or that he would not be corrupted—but his colleagues would? Just where is the wrong in receiving $50,000 instead of $5,000? We all know it takes money to run for public office—a lot of money. No one knows that better than challengers, who are especially disabled by our present law. Is that why that law is in place?
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The time has come to revisit these issues fundamentally. If there is quid-pro-quo corruption, then let the Justice Department investigate it. All the evidence suggests, however, that money buys access, it does not buy votes. Access is crucial—especially for those whose lives and fortunes are at the mercy of the modern regulatory state, as today is too often the case. It is through access that information is imparted and interests made known, which is precisely what political speech is about. This is not a time to limit that speech. It is a time to encourage it—and, in the process, to terminate the arcane procedures under which recent elections have been conducted, which themselves corrupt.
As a constitutional matter, however, perhaps no one put it better than a supporter of further restrictions, Rep. Richard Gephardt. Quoted in 1997 by Time magazine, Mr. Gephardt said: ''When it comes to freedom of speech and our desire for healthy campaigns and a healthy democracy, you cannot have both.'' Mr. Gephardt was wrong in saying that we cannot have both. But he was right to suggest that further restrictions would compromise free speech. It is disheartening, however, to see that he would choose those restrictions over freedom. Fortunately, the Constitution remains the supreme law of the land.
Mr. CANADY. Mr. Moramarco.
STATEMENT OF GLENN J. MORAMARCO, SENIOR ATTORNEY, BRENNAN CENTER FOR JUSTICE, NEW YORK UNIVERSITY SCHOOL OF LAW
Mr. MORAMARCO. Thank you, Mr. Chairman. I, too, am honored to have been asked to testify here today. I would like to begin at the outset by saying what the problem is that the reform community is trying to solve, and what it is not. The objective is not to prevent political parties from supporting their candidates, but it is to end the soft money abuses that allow political parties to raise money in unlimited amounts and without adequate disclosure.
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It is not to limit third-party independent expenditures, but it is to ensure, again, adequate disclosure and to prevent unions and corporations from using their general treasury funds for such purposes. That has been endorsed by the Supreme Court. And it is not to prevent groups from engaging in issue advocacy, but it is to develop a system that adequately differentiates between true issue advocacy and sham issue advocacy. Everyone here knows the sham issue advocacy that is going on today, and I would defer to Mr. Briffault's comments in that regard.
In the short time that I do have, though, I would like to center my remarks on this issue advocacy question. Some of the other witnesses in their prepared comments argue that the Supreme Court has limited what Congress can do to just adopting a very strict magic words approach. They basically argue that the Court recognized the power of Congress to regulate in this area and then constructed a system under which all regulation is meaningless.
The Court usually does not operate in that kind of a fashion, and I don't believe they intended to do so here. The Court in Buckley was trying to save what was a badly drafted statute, FECA. It suffered from vagueness and overbreadth problems. But the Court never said and never intended to say that Congress couldn't write a better statute that better defined electioneering or express advocacy, that didn't suffer from these vagueness and overbreadth problems, and if it did so, the Court, of course, would give it a fresh look. Some of the bills that are before Congress today have taken that tack.
There are two possible approaches that I would like to just discuss briefly that I think should survive Court scrutiny. One is an objective approach, which is based on a series of measurable factors, and a second is a subjective approach based on self-disclosure.
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The objective approach I think you are all familiar with. It is in the Shays-Meehan bill here in the House; it is in the McCain-Feingold bill in the Senate. Basically you start with a series of measurable objective factors typically includes mentoring a candidate within a certain limited time period prior to an election.
There are all sorts of ways, though, to make that sort of general structure more protective of first amendment values. One is to specify a dollar threshold—to say that only expenditures above $10,000, for example, are subject to regulation. I saw Mr. Briffault's testimony. He suggested that you might want to have different limits depending on the race. You might want to have a higher dollar limit for Presidential races, a lower limit for congressional races. That makes a lot of sense to me.
You also can limit the application to certain specified media. You specify whatever it is you are trying to most get at, is it television, is it the radio, is it the networks, is it newspaper, whatever it is that you are most concerned about as the source of the problem. The key is to provide as much specificity as possible so that people out in the community will know ahead of time what will be regulated and what will not.
There is a possible further protection as well. You could use these criteria to just create presumption of regulability, because what you are trying to do here is to not capture issue advocacy.
Now, we know as an empirical matter that most of the commercials that appear right before an election that name a candidate, that involve large expenditures of money are, in fact, intended for electioneering. But people are always fond of coming up with the extreme examples; you know, during the Vietnam war having President Johnson in an ad that was really about the Vietnam war and not about President Johnson. And those do occasionally exist. So if you have a presumption, rather than a hard and fast rule, the speaker would be able to rebut that presumption. But in the world in which we live, most of these ads are intended to be electioneering and should be subject to regulation.
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It is also possible to have a self-disclosure system. Again, you start with the criteria that are important. You start with ads that identify a candidate during a certain time period, spending a certain amount of money, in certain specified media, but if someone runs one of those ads, you then ask them to file a disclosure form with the FEC in which they will disclose whether or not it was their intention to, in fact, influence the outcome of the election of the named candidate or not.
I think, as a general rule, the FEC would probably accept those designations, but they would have the opportunity if they thought people were being untruthful, to have a civil action brought and maybe have civil damages of three times the amount that was spent on the ad.
What does that kind of system accomplish? What it does accomplish is it prevents these organizations from doing what they do today, which is they brag about how they are targeting 12 Members of Congress; brag about how they have, in fact, defeated some of them; and then in the end they say, ''but we weren't engaged in electioneering. It was just issue advocacy, because we didn't use the words 'elect' or 'defeat.' '' If they were forced to at least say they did not have an intention to elect or defeat a candidate, then they couldn't at the same time brag about their achieving that goal.
This obviously requires some reasonable degree of compliance. I think that there would be compliance with this if there were some reasonable sanctions, noncriminal sanctions. I agree with Laura Murphy on that. But I do think what we are trying to do is differentiats between those ads that are electioneering and those that are not, and self-disclosure might go a long way.
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In summary I would just say that the Supreme Court did not put Congress in such a box that it allowed it to regulate in this area, but said that all regulation would be useless. That is not something that the Court does as a matter of general principle. Congress should look at what happened in Buckley as striking down one particular badly-worded statute, but not foreclosing other alternatives.
Thank you.
Mr. CANADY. Thank you.
[The prepared statement of Mr. Moramarco follows:]
PREPARED STATEMENT OF GLENN J. MORAMARCO, SENIOR ATTORNEY, BRENNAN CENTER FOR JUSTICE, NEW YORK UNIVERSITY SCHOOL OF LAW
Mr. Chairman, I am honored to have been invited to testify before the Subcommittee concerning Congress' ability to regulate electioneering speech without infringing on the First Amendment right to engage in protected ''issue advocacy.''
By way of introduction, the Brennan Center for Justice at New York University School of Law is a nonpartisan institution devoted to scholarship, discourse, and action on issues of justice that were central to the jurisprudential legacy of Justice William J. Brennan Jr. We are guided by principles that were important to Justice Brennan—a willingness to ask the hard questions and to reexamine old doctrine, an insistence on developing constitutional norms that make pragmatic sense, and an ardent insistence on protecting liberty. Justice Brennan did more than any Justice in the history of our nation to protect civil liberties—and particularly freedom of speech. Given our namesake, we would like to think that we approach all issues, and particularly issues relating to the financing of campaigns, with a special sensitivity to concerns about free speech.
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In the 1996 and 1998 federal elections, corporations, labor unions, political parties, and advocacy groups spent hundreds of millions of dollars for advertisements that were wholly unregulated by the federal government because, the sponsors of the ads claimed, they were engaged in ''issue advocacy'' rather than electioneering. However, rather than educating the public broadly about issues, the typical sham ''issue ad'' mentioned a single candidate, targeted the segment of the public eligible to vote for that candidate, began to run when an election was imminent, and ended abruptly on Election Day.
The issue facing this committee, how to draw a reasonable line that distinguishes between regulable electioneering speech and protected ''issue advocacy,'' is as difficult as it is necessary. We need to protect true ''issue advocacy''—communications that address an issue of national or local political importance. Examples of true ''issue advocacy'' include the Harry and Louise ads run by the Health Insurance Association of America in opposition to President Clinton's national health care reform proposal, or the anti-NAFTA ads run by labor unions in late 1993, while that legislation was pending. However, we cannot permit sham ''issue ads,'' which do nothing beyond advocating the election or defeat of a named candidate, from undermining the valid limitations placed by the law on electioneering activity.
Let me begin with some non-controversial legal principles. Under current law, there is no doubt that it is permissible for Congress to draw some line distinguishing electioneering speech from ''issue advocacy.'' If speech falls on the ''electioneering'' side of the line, three consequences follow:
1. Disclosure: Congress may require the speaker—whether a PAC or a corporation or a party or an individual or a candidate—to disclose the sources of the money and the nature of the expenditures in support of the speech.
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2. Source restrictions: Congress may absolutely bar certain speakers from spending money on electioneering. Congress may preclude corporations and unions from electioneering (or, more accurately, from spending money to engage in electioneering). Congress may limit participation to individuals and PACs. Congress may prohibit foreigners from electioneering.
3. Fundraising restrictions: Congress may restrict the sources from which speakers can raise their money—to individuals, for example—and Congress can limit the size of the contributions to a collective fund.
Do these restrictions infringe on speech and privacy rights? Of course they do. Wherever one draws the electioneering line, there are certain words that corporations and unions are banned from uttering. There are certain messages that can be funded only by individuals or by groups that amass individual contributions in discrete amounts. These regulations necessarily reduce the sheer amount of money that can be spent on certain messages. And these regulations require speakers to reveal certain information such as how much they spent and who supported their message.
Even though these regulations infringe on speech, they are indisputably constitutional. Since 1907, corporations have been barred from electioneering, since 1947 those restrictions have been extended to labor unions, and since 1974, the law has restricted the size of contributions that can be made to speech funded by a group. The Supreme Court has upheld all of these restrictions on electioneering. Of course, a great deal rides on what qualifies as ''electioneering.'' If the government defines the concept too broadly, it could end up restricting speech on issues of public importance that happens to have an influence on elections—a result that is antithetical to the First Amendment. If the law defines it too narrowly, we may as well not bother having campaign finance laws, because all players could readily find a way to influence elections in a direct way, making a mockery of the law.
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That is where we find ourselves today. We are now in a world where everyone has become accustomed to thinking that it is not electioneering unless the speaker utters a ''magic word''—like ''vote for,'' ''vote against,'' ''elect,'' or ''defeat.'' So all players—corporations, unions, foreigners, and parties—engage in an open strategy of trying to influence elections by running or paying for ads that look, smell, waddle, and quack like campaign ads, but are just missing the magic words. They use money from prohibited sources, they raise it in prohibited amounts, and they close their books to public scrutiny. In many cases, their stated goal is to influence the election. They brag about their success in influencing the election, and yet they claim the First Amendment protects their right to engage in any speech, even with that clearly proscribable motive.
I do not believe that we are struck with a constitutional doctrine that nominally allows us to place restrictions on electioneering, but nevertheless allows individuals and groups to accomplish the same result through naked subterfuge. The federal courts are not so irrational that they will acknowledge the government's power to regulate in an area while simultaneously imposing rules that make all regulation unworkable.
When the Supreme Court first devised the ''express advocacy'' test in Buckley, it did so in the context of a poorly drafted statute (the Federal Election Campaign Act) whose definition of regulable electioneering contained problems both of vagueness and overbreadth. Under First Amendment ''void for vagueness'' jurisprudence, the government cannot punish someone without providing a sufficiently precise description of what conduct is legal and what is illegal. A vague or imprecise definition of electioneering might serve to ''chill'' some political speakers who, although they desire to engage in discussions of political issues, may be afraid that their speech could be construed as electioneering. The Buckley Court found that the regulated conduct, which included expenditures ''relative to a clearly identified candidate'' and ''for the purpose of influencing an election'' were not sufficiently precise to provide the certainty necessary for those wishing to engage in political speech.
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Similarly, the overbreadth doctrine in First Amendment jurisprudence is concerned with a regulation that, however precise, sweeps too broadly and reaches constitutionally protected speech. The Buckley Court was concerned that the Federal Election Campaign Act's attempt to regulate any expenditure that is done ''for the purpose of influencing'' a federal election or that is ''relative to a clearly identified candidate'' could encompass not only direct electioneering, but also protected speech on issues of public importance.
The Court chose to save the Federal Election Campaign Act from invalidation by reading it very narrowly. However, the Court never said that no legislature could ever devise alternate language that would be both sufficiently narrow and sufficiently precise. The decision to narrowly construe a statute to save it from potential vagueness and overbreadth problems does not prevent further legislative refinements that eliminate those problems. The key for Congress is to draw a line that distinguishes between regulable electioneering and protected ''issue advocacy'' in a way that minimizes the vagueness and overbreadth concerns identified by the Court.
How is this accomplished? Let me outline two possible approaches which, in my view, should survive court challenge. One is an objective approach based on series of measurable factors. The second is a subjective approach based on self-disclosure.
Several of the proposals currently before Congress, including the Shays-Meehan Bill in the House and the McCain-Feingold Bill in the Senate, adopt an objective approach based on a series of measurable factors. Under this type of an approach, ads typically are subject to regulatory control if the ad mentions a specific candidate within a certain limited time period prior to an election. To make the statute more protective of First Amendment values, it is useful to specify a dollar threshold (protecting all spending below, say, $10,000) and to limit the application to ads which appear in certain specified media (such as radio, television, cable, newspapers, etc.). Finally, in order to further guard against both vagueness and overbreadth challenges, the objective criteria specified in the statute, rather than being a hard and fast rule, can be limited to creating only a presumption of regulable electioneering. The use of a rebuttable presumption can provide a safety net for the unusual cases that detractors of these laws are so fond of inventing—such as ads denouncing President Johnson during the height of the Vietnam War. In the real world in which we all live, however, ads run close to an election that name candidates are almost invariably regulable electioneering ads.
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A second approach that has not yet been tried, but which is promising, is a self-disclosure system. Let me describe what I have in mind. The regulatory regime begins with a set of objective factors such as those outlined above—ads that name a candidate within a certain number of days of an election, that are broadcast in certain specified media, and that meet a certain dollar threshold. If all of the factors are present, the Federal Election Commission then requires the sponsor of the ad to file a disclosure form stating either that the ad was intended to influence the election or defeat of the named candidate, or that it was not intended (even in part) to influence the election or defeat of the named candidate. As a general rule, the FEC would accept a sponsor's designation of their own ad as an ''issue ad,'' rather than an electioneering ad. However, the FEC would be given the authority to challenge a sponsor's designation, with the government bearing the burden of proof. False designations would be fined in an amount up to three times the amount paid for the offending advertisement.
What does this self-disclosure system accomplish? Assuming a reasonable degree of truthful compliance, the self-disclosure system allows the government to accurately distinguish between those ads which truly are intended to influence a candidate's election or defeat and those which are not—which is, after all, the sole objective of the law. Although others may be skeptical, my suspicion is that most advocacy groups which spend substantial amounts of money on sham ''issue ads'' that praise or denounce a particular candidate would be unwilling to publicly state that they did not intend to influence the election or defeat of that named candidate. Advocacy groups will no longer be able to tout their success at targeting specific candidates for election or defeat, while simultaneously claiming that they are engaged only in ''issue advocacy'' because their ads failed to use ''magic words.'' Moreover, corporate and union sponsors can be entirely prohibited from using general treasury funds for self-disclosed electioneering ads. However, advocacy groups that are truly engaged solely in ''issue advocacy'' can continue with their activities in an unregulated manner.
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In sum, it is constitutionally permissible for Congress to enact legislation that regulates ads that are intended to influence the electoral outcome of particular candidates, as long as the legislation does not unduly sweep within its reach ads that are intended to discuss issues only. The ''magic words'' test clearly does not accomplish this permissible objective in an acceptable manner. The Supreme Court does not purposely permit government to regulate in an area while imposing rules that make all attempts at regulation worthless. Congress has the power to pass legislation which remedies the vagueness and overbreadth problems that plagued the Federal Election Campaign Act by providing a better method for differentiating between electioneering and true ''issue advocacy.''
Mr. CANADY. Mr. Remcho.
STATEMENT OF JOSEPH REMCHO, ESQUIRE, REMCHO, JOHANSEN & PURCELL
Mr. REMCHO. Thank you, Mr. Chairman and Members. I appreciate very much the opportunity to testify today. I do want to say a few words about contribution limits and also echo some of the things that Commissioner Mason said with respect to the unintended consequences of government being involved in the area of campaign finance.
I would like to say preliminarily that my experience comes not just from having served on California's Fair Political Practices Commission and having litigated extensively in the area of the first amendment and constitutional law, but I also spend a good deal of my time advising officeholders, individuals, groups, and candidates in California about the requirements of the law, and in some cases defending those that run afoul of the law.
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I want to say a few things first about contribution limits. When the United States Supreme Court approved the $1,000 limit per election in Buckley, the combined $2,000, one for the general and one for the primary, constituted 1/37 of the average total contributions that were received in congressional races at the time. That is, at the time the Supreme Court looked at Buckley, it was looking at average congressional campaigns that cost $54,000. A $2,000 contribution in that context, 1/37 of the total amount, was a pretty substantial contribution.
In effect, the Supreme Court found that if the 1,000 limit had been applied in the previous congressional elections, only 4 percent of the funding for congressional elections at that time would have been disallowed.
Now, we recently litigated a case, Mr. Bopp was cocounsel with me in California, involving Proposition 208, which set limits in State legislative races ranging from 250 to $500, and we looked at those limits. We found that, on average, a $500 contribution was not 1/37 of the average total spending, but the $500 was about \1/1000\ of the total spending.
And in addition, we had the opportunity to have expert testimony, and we had findings by the court in which the court found that in California races, that imposing a $500 contribution limit would have taken out about two-thirds of the average funding in assembly and senate districts, and, in fact, would have taken away 80 percent of the funding in California Senate and Assembly races where there were challengers, challenging incumbents. It would have taken 80 percent, in most cases, of challenger's money.
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So the point I want to make is that although the $1,000 limit is something that has been adjusted to in Federal life, the fact is that it is far, far smaller now, obviously based on inflation, but not just inflation, but based on the total cost of campaigns, because the costs of campaigns have far exceeded inflation.
One point I want to make with respect to that and unintended consequences comes from my experience when Proposition 208 passed and for a brief time actually imposed those limits in California. The fact of the matter is that the proponents really had as their major text reducing the amount of spending. They talked a little bit about corruption, and they talked a little bit about this and that to meet constitutional standards, but we all know that it is not a constitutionally acceptable reason for campaign limits to say that you want to limit the total amount of money involved. But we also know that, certainly in California, the folks that were responsible for passing Proposition 208 made it quite clear in their ballot arguments and otherwise that they wanted to reduce the total amount of spending.
My experience has been, and the court found, that what happens is a shift in spending. Our clients all came to us and said, look, we can't contribute to candidates; therefore, we want to make independent expenditures. We won't coordinate with the candidates, and we will spend the money.
And, in fact, they recognized that because they weren't coordinating with the candidate, they would have to actually spend even more money to try to get a sense of what the message is, or they would go into negative ads. And there was a—there was going to be at least, had Proposition 208 not been stopped, a major campaign in California funded by independent expenditure committees.
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I would say that when this committee and others review the constitutionality and the wisdom of contribution limits, they bear in mind this shift and that what the shift does is anti—in my view, antidemocratic, because what it does is it takes accountability away from the candidate for all of the ads, whether they be negative or positive, and it rests accountability for that message with groups that by law have no business even communicating with the candidate.
And thank you for your attention.
Mr. CANADY. Thank you.
[The prepared statement of Mr. Remcho follows:]
PREPARED STATEMENT OF JOSEPH REMCHO, ESQUIRE, REMCHO, JOHANSEN & PURCELL
Mr. Chairman and Members. I appreciate the opportunity to appear today to provide my perspective on the substantial constitutional issues that are always present when the federal government or any government regulates the participation of citizens in the political life of the nation. My experience is primarily with campaign laws in the State of California. I understand that other members of the panel will provide information about the unsettled state of the law in this area and I, too, would be happy to address recent state and federal court decisions. But I want to focus primarily on the real world effect of the restrictions that inevitably affect all of us who participate in the political process. Although I have represented many past and current politicians and groups in California politics, I, of course, am speaking solely for myself today.
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For the past twenty-five years I have engaged in the practice of law in California with a primary interest in the practice of constitutional law and a particular interest in the First Amendment and what we call political law. Politics is now one of the most highly regulated industries in the State of California. Since the Political Reform Act of 1974, California has had a highly complex and intrusive regulatory system, backed by administrative, civil and criminal penalties, to control the behavior of candidates, officeholders and other participants in the political process. Over the past decade it has also had several statewide initiative measures, drafted and supported by those who would take the money out of politics, each of which has placed the perceived need to reduce money in politics over the free flow of political communication.
For me, a central problem with most campaign contribution limit schemes has been that the effect is usually and quite often contrary to that intended by the drafters. In virtually all cases, speech, usually the direct speech of the candidate, is sharply curtailed, while the stated goals of the proponents are poorly served or indeed thwarted. In short, the cost in political speech and association is high; the benefits are often relatively low. The most recent example is Proposition 208, passed by the voters in 1996 and currently stayed by the United States District Court for the Eastern District of California. Proposition 208 set up an elaborate scheme of low contribution limits, so-called ''voluntary'' but in fact highly coercive limits on political expenditures, and a regulatory system that puts tremendous and expensive burdens on candidates, officeholders and their supporters. The measure is best understood by envisioning oneself as a candidate for office, someone new to politics, running against an incumbent.
Imagine that I want to run for the Assembly against the incumbent, a well-known officeholder. If neither of us can spend a cent on the campaign, he is known to the voters and I am not. No one knows me and I have no way of informing the voters of who I am and what it is that I stand for. Proposition 208 does not bar all spending, but under its ''voluntary'' limits, we can each spend $150,000 in the primary, but no more. I cannot spend enough so that people know who I am and what I stand for. He wins.
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If I refuse to abide by the voluntary limits, I can only raise money at $250 per person. My opponent, however, then gets to spend $450,000 on the primary, can raise at $500 per person and take unlimited funds from his political party. And the state also gives him free space in the ballot pamphlet. He wins.
If my friends are union people who can only give a few dollars each to a union committee, the committee is limited to one $1000 contribution, no matter how many members it has. Not only am I limited to one contribution from their local union, but no other affiliated union can give anything. There may be hundreds of local unions who believe in my philosophy and want me elected, but only one is allowed to give me anything after any of them, or the statewide union, gives me $1000. If my opponent is a businessman or an incumbent with connections, he can reach a hundred people who will each give $500. He can raise $50,000 from them. The most I can get from a union PAC is $1,000 total. He wins.
If a group of my friends wants to spend money on my behalf, they are prohibited from discussing what they are doing with me or anyone working on my campaign. They can pool their resources to help me, but only to the extent of $250 per person. If one of them has given me a contribution of $100, he cannot participate in the independent effort. If a major corporation wants to spend $1,000,000 on its own to oppose me, however, it can do so. My opponent wins.
If my opponent has personal wealth, he can contribute unlimited amounts to his campaign and spend unlimited amounts. I still am limited to raising funds at $500 per person. He wins.
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This is not a fair system. More importantly, it is not a constitutional system. It depresses political speech, it oppresses political association, and it discriminates in favor of incumbents, the wealthy and the well-known. It is, in the name of reform, antithetical to everything that the architects of our Constitution believed essential to a free and fair political system.
In California Pro Life Council v. Scully, 989 F.Supp. 1282 (E.D. Cal. 1998), the court enjoined enforcement of Proposition 208 because it found
myriad facts which, taken together, require the court to conclude that on the record made at trial the effect of the initiative is not only to significantly reduce a California candidate's ability to deliver his or her message, but in fact to make it impossible for the ordinary candidate to mount an effective campaign for office.
Id. at 1297.
Testimony adduced at the three-week trial strongly suggested a reverse arms war between two factions supporting competing ballot measures. The proponents of Proposition 208 originally proposed limits of $1,000 in state legislative races, but in response to competition from drafters of the other initiative, they eventually settled on a limit of $500 for those who agreed to accept limits on total spending and $250 for those who did not. The obvious problem was that each wanted to go to the voters claiming they would do the most to take money out of politics.
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But what happens when limits are set that low in a state the size of California? California's Senate Districts are larger than those of members of the House of Representatives. Its Assembly districts have more than 350,000 thousand people. As the Court found, at limits of $250 per candidate, it is virtually impossible to raise the funds to reach people. Indeed, even without the voluntary spending limits, ''the reduction in fundraising ability caused by the contribution limits of Proposition 208 operates to make those contribution limits effectively operate as expenditure limits.'' (Id., Findings of Fact at 62, No. 283.)
Perhaps the most telling comparison was that provided by Professor Gary Jacobson of the University of California at San Diego. He compared the $1,000 contribution limit upheld for federal races in Buckley v. Valeo, 424 U.S. 1 (1976) with the $250 limits in Proposition 208. The United States Supreme Court found, in deciding Buckley, that banning contributions over $1,000 would have little effect on fundraising ability at that time, because little more than 4% of all contributions in the election preceding the decision came in amounts of $1,000 or more. That is, the limits it approved in Buckley did not affect 96% of the total funds received by candidates. By contrast, Professor Jacobson's studies demonstrated that the limits of Proposition 208 would have made more than two-thirds of contributions to Assembly races illegal. Unlike the situation in Buckley, this measure would have had a profound impact on the speech of candidates and their supporters. Indeed, Professor Jacobson testified that virtually no California candidate had been elected, running against an incumbent, who had spent what Proposition 208's expenditure limit allowed or less.
Professor Jacobson and other experts also testified that in California, money would still stay in politics, but it would be spent by outside groups acting independently of candidates. That is, money would still be in politics, but no longer would the candidates be accountable for how it was spent. The goal of the proponents to reduce the total amount of political speech would be thwarted, but the candidates themselves would lose control over their own message, because the funds that they had to spend would be far less than the independent operators.
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Although California is large, it is not unique in what it costs to run a campaign in that state. Campaigns are increasingly expensive everywhere for a variety of reasons, not least of which is the cost of complying with so many campaign finance laws.
Although the proponents of this and other campaign finance measures across the nation usually candidly state that their goal is to reduce the influence of money in politics, the truth is that the United States Supreme Court has never sanctioned and has expressly disavowed the legitimacy of that goal as a justification for reducing the flow of political speech. See, Buckley v. Valeo, 424 U.S. 1 (1976). Money given to political candidates is not used for exotic trips or castles in Spain. It is used for one purpose: to get out, by whatever means possible, the political message of the candidate. It pays for television, radio, mailings and personal appeals. If those messages crowd out commercials for soap, beer and perfume, then so be it.
The practical consequences are that limits such as those adopted in California and elsewhere favor and institutionalize the advantages of at least the following:
1. Wealthy individuals of whatever political views who can afford to spend what they feel is necessary. In California last year, Al Checchi spent more than $40 million of his own money in the primary. Representative Jane Harmon spent at least $15,000,000 of her own money.
2. Incumbents, sports figures and others with well-established names and reputations who do not need to spend substantial funds to gain name recognition and understanding of what they stand for.
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3. Those candidates with the simplest of messages. Candidates with carefully thought-out, nuanced views of issues will always have a hard time getting their message out. But if they are to have any chance of doing so, they will need to spend more and get more information before the voters to explain positions that might be correct, important for the state in the long run, yet not immediately evident to voters.
4. Those candidates whose fund-raising base is consistent with the campaign laws in effect—namely, those whose base is highly-paid professionals.
An example of the latter is the effect of California's $250 per candidate limit on contributions to state legislators. Let us assume for example that a hotly contested issue in the California Legislature pits my clients, the Service Employees International members in California, many of whom work at low wages in California's hospitals, against California's physicians, who typically are far better paid. Both groups have a strong interest in electing legislators sympathetic to their views. Getting representatives who are sympathetic to your views is the very essence of representative democracy.
Under California's Proposition 208, which is not unusual in campaign finance laws, the 250,000 service employees may band together, as they have, each giving something less than 25 cents a month to their political action committee. And if they structure correctly and have informed counsel, they may in combination give a total of $1,000 to a candidate for the California Assembly or Senate.
What of the physicians? If they pool their funds in a political action committee, they too may give only $1,000 jointly. But each may give the $1,000 to the candidate of choice. And the physicians, unlike the hospital workers, are in a position to do so if the issue is important enough to them. Fifty physicians can give $50,000. Two hundred fifty thousand hospital workers together can give $1,000.
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No one disputes that the current system—with no contribution or expenditure limits—provides built-in advantages to some sectors. By its nature, it benefits incumbents and it certainly benefits the wealthy. A system of public finance with funding substantial enough to allow messages to get out and qualifying requirements that do not put the government in the business of funding some, but not all, candidates may be the answer. But it is also true that any imposition of restrictions on speech will have profound effects and disparate benefits and disadvantages. No system that depresses speech can fairly be said to be consistent with a nation that cherishes the free exchange of ideas, no matter how foolish they may appear to some. Unless one can create a system that does not itself skew the system and further institutionalize advantages some already have, sound policy suggests that the government require full disclosure of the sources of funds and let the voters make their own judgments about the candidates and the validity of their message.
Mr. CANADY. Mr. Bonifaz.
STATEMENT OF JOHN C. BONIFAZ, EXECUTIVE DIRECTOR, NATIONAL VOTING RIGHTS INSTITUTE
Mr. BONIFAZ. Thank you, Chairman Canady and members of the committee, for inviting me to testify before you today. I am honored to appear to address this critical issue of our time, the increasing dominance of money in our elections.
American democracy is in crisis. Voter turnout is at an all-time low. Public trust in our elections and in our democratic institutions continues to deteriorate. We face an erosion of public confidence which now threatens the very integrity of our electoral process.
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At the core of this crisis is our system of private financing of public election campaigns. Under this system, money has become a determining factor in defining candidate viability and success. The power of the dollar has replaced the power of the vote.
In this last election, 92 percent of House winners and 88 percent of Senate winners first won the wealth primary, outraising and outspending their opponents, and then won election. The vast majority of campaign money comes from a tiny and wealthy segment of our society. Less than 1 percent of the population contributes more than 80 percent of all money in Federal elections in the amount of $200 or more.
Wealthy individuals and moneyed interests increasingly control our elections and our politics, drowning out the voices of ordinary citizens. This dominance of the wealthy few has a profound impact on the major issues of concern to Americans today.
From health care to the environment, from economic justice to education, political money is an ever-present barrier to any meaningful change. And for the millions of poor and working people of this country, who struggle every day to make ends meet, the message is very clear. This government is not yours. It is not for you.
The first amendment, some say, protects all of this. Any fundamental change to the campaign finance system allegedly violates the free speech rights of the wealthy and the well-connected. Nothing could be further from the truth. Poor and working people have free speech rights, too, and yet under today's campaign finance system, their voices are shouted down.
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This is antithetical to the basic values of the first amendment. No one, no one has the first amendment right to drown out other people's speech. In 1949, the U.S. Supreme Court made this clear in the case of Kovacs v. Cooper. In Kovacs, a union on strike had been blaring its strike message with a sound truck travelling down every public street in the city of Trenton, New Jersey. The city responded by passing an ordinance eliminating the use of sound trucks to every third street. The union challenged the ordinance as unconstitutional on first amendment grounds.
Upholding the regulation, the Supreme Court stated, ''Unrestrained use throughout a municipality of all sound amplifying devices would be intolerable.''
Central to the Court's finding in Kovacs was its view that public streets were designed for use by the public and ought not to be obstructed by any specific individuals or groups of individuals. Quote, ''Opportunity to gain the public's ears by objectionably amplified sound on the streets is no more assured by the right to free speech than is the unlimited opportunity to address gatherings on the streets.''
Like our public streets, our public elections, designed for the people to choose their representatives, ought not to be obstructed by any special interest, including those with large sums of money. Dramatic change of our campaign finance system is necessary to ensure that the first amendment rights of all citizens are protected, regardless of their economic status.
But there is another constitutional right too often left out of this debate: the right to vote as guaranteed by the Equal Protection Clause, ''a fundamental political right'' as the Supreme Court stated in 1886 in Yick Wo v. Hopkins, which is, quote, ''preservative of all rights.'' More than 50 years of voting rights case law demonstrates that the right to vote today is far more than the right to pull that lever on election day. It is the right to an equal and meaningful vote, which includes the right to equal and meaningful participation.
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Today's campaign finance system undermines the right to vote. It denies equal and meaningful participation in the political process for the millions of Americans who lack access to wealth. This system, once thought to be constitutional, is constitutional no more.
In its landmark 1966 ruling, Harper v. Virginia Board of Elections, the Supreme Court stated for the first time that wealth cannot be a determinent factor in our elections. Annie Harper, a poor Virginia voter, and a group of voters with her, had challenged the $1.50 poll tax which Virginia charged to voters for participating in its State elections. Prior to this case, the Supreme Court had twice before upheld the poll tax as constitutional, but this time the Supreme Court finally got it right.
The court struck down the poll tax barrier as violating the Equal Protection Clause holding that ''a State violates the Equal Protection Clause of the 14th amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard. Voter qualifications have no relation to wealth.''
Six years later, the court reiterated this principle in striking down high candidate filing fees from the State of Texas. Quote, ''We would ignore reality,'' the court stated, ''were we not to recognize that this system falls with unequal weight on voters, as well as candidates, according to their economic status.'' We would ignore reality today were we not to recognize that this system, this wealth primary system, falls with unequal weight on voters, as well as candidates, according to their economic status.
The House Clean Elections Act, of which Congressman John Tierney is the lead sponsor and Congressman Jerrold Nadler is one of the original cosponsors, presents a comprehensive solution. To protect the first amendment rights of all of us, to preserve the fundamental right to vote, and to restore integrity to our electoral process, this Nation must enact a voluntary system of full public financing of our elections as a real alternative to the money-driven politics of the current system. The United States Constitution and its promise of political equality require that we do no less.
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Thank you.
Mr. CANADY. Thank you.
[The prepared statement of Mr. Bonifaz follows:]
PREPARED STATEMENT OF JOHN C. BONIFAZ, EXECUTIVE DIRECTOR, NATIONAL VOTING RIGHTS INSTITUTE
Chairman Canady, Ranking Minority Member Watt, and all Members of the Committee: Thank you for inviting me to testify before you today. I am honored to appear to address a critical issue of our time—the increasing dominance of money in our elections.
American democracy is in crisis. Voter turnout is at an all-time low. Public trust in our elections and in our democratic institutions continues to deteriorate. We face an erosion of public confidence which now threatens the very integrity of our electoral process.
At the core of this crisis is our system of private financing of public election campaigns. Under this system, money has become a determinant factor in defining candidate viability and success. The power of the dollar has replaced the power of the vote. In this last election, ninety-two percent of House winners and eighty-eight percent of Senate winners first won the wealth primary—outraising and outspending their opponents—and then won election. The vast majority of campaign money comes from a tiny and wealthy segment of our society. Less than one percent of the population contributes more than eighty percent of all money in federal elections in the amounts of $200 or more. Wealthy individuals and monied interests increasingly control our elections and our politics, drowning out the voices of ordinary citizens.
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This dominance of the wealthy few has a profound impact on the major issues of concern to Americans today. From health care to the environment, from economic justice to education, political money is an ever-present barrier to any meaningful change. And for the millions of poor and working people of this country who struggle every day to make ends meet, the message is very clear: this government is not yours, it is not for you.
The First Amendment, some say, protects all of this. Any fundamental change to the campaign finance system allegedly violates the free speech rights of the wealthy and well-connected. Nothing could be further from the truth.
Poor and working people have free speech rights too. And yet, under today's campaign finance system, their voices are shouted down. This is antithetical to the basic values of the First Amendment. No one has the First Amendment right to drown out other people's speech. In 1949, the U.S. Supreme Court made this clear in the case of Kovacs v. Cooper, 336 U.S. 77 (1949). In Kovacs, a union on strike had been blaring its strike message with a soundtruck traveling down every public street in the city of Trenton, New Jersey. The city responded by passing an ordinance limiting the use of soundtrucks to every third street. The union challenged the ordinance as unconstitutional on First Amendment grounds. Upholding the regulation, the Court stated: ''Unrestrained use throughout a municipality of all sound amplifying devices would be intolerable.'' Id. at 81.
Central to the Court's finding in Kovacs was its view that public streets were designed for use by the public and ought not to be obstructed by any specific individuals or groups of individuals. ''Opportunity to gain the public's ears by objectionably amplified sound on the streets is no more assured by the right to free speech than is the unlimited opportunity to address gatherings on the streets.'' Id. at 87–88. Like our public streets, our public elections—designed for the people to choose their representatives—ought not to be obstructed by any special interests, including those with large sums of money. Dramatic change of our campaign finance system is necessary to ensure that the First Amendment rights of all citizens are protected, regardless of their economic status.
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But there is also another constitutional right too often left out of this debate: the right to vote as guaranteed by the Equal Protection Clause— ''a fundamental political right,'' as the Supreme Court stated in 1886 in Yick Wo v. Hopkins, which is ''preservative of all rights.'' Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886). More than fifty years of voting rights case law demonstrates that the right to vote today is far more than the right to pull that lever on election day. It is the right to an equal and meaningful vote, which includes the right to equal and meaningful participation.
Today's campaign finance system undermines the right to vote. It denies equal and meaningful participation in the political process for the millions of Americans who lack access to wealth. This system, once thought to be constitutional, is constitutional no more.
In its landmark 1966 ruling, Harper v. Virginia Board of Elections, the Supreme Court stated for the first time that wealth cannot be a determinant factor in our elections. Annie Harper, a poor Virginia voter and a group of poor voters with her had challenged a $1.50 poll tax which Virginia charged to voters for participating in its state elections. Prior to this case, the Supreme Court had twice before upheld the poll tax as constitutional. But this time, the Supreme Court finally got it right. The Court struck down the poll tax barrier as violative of the Equal Protection Clause, holding that ''a State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard. Voter qualifications have no relation to wealth.'' Harper v. Virginia Board of Elections, 383 U.S. 663, 666 (1966).
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Six years later, the Court reiterated this principle in striking down high candidate filing fees from the state of Texas. Bullock v. Carter, 405 U.S. 134 (1972). ''We would ignore reality,'' the Court stated, ''were we not to recognize that this system falls with unequal weight on voters, as well as candidates, according to their economic status.''
We would ignore reality today were we not to recognize that this wealth primary system falls with unequal weight on voters, as well as candidates, according to their economic status. See Jamin Raskin and John Bonifaz, ''Equal Protection and The Wealth Primary,'' Yale Law & Policy Review, Vol. 11, No. 2, 273–322 (1993).
The House Clean Elections Act, of which Congressman John Tierney is the lead sponsor and Congressman Jerrold Nadler is one of the original co-sponsors, presents a comprehensive solution. To protect the First Amendment rights of all of us, to preserve the fundamental right to vote, and to restore integrity to our electoral process, this nation must enact a voluntary system of full public financing of our elections as a real alternative to the money-driven politics of the current system. The United States Constitution and its promise of political equality require that we do no less.
Mr. CANADY. Mr. Bopp.
STATEMENT OF JAMES BOPP, JR., ESQ., GENERAL COUNSEL, JAMES MADISON CENTER FOR FREE SPEECH
Mr. BOPP. Thank you very much, Mr. Chairman. It is a pleasure to testify, once again, before your committee, to be with the distinguished members of your committee who are concerned about the important issue of the first amendment as it would affect elections, and also the panel that I am privileged to be a part of regarding this important issue.
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I think symbolically this panel represents, as you heard, the testimony of those who want to maintain a free marketplace of ideas for political ideas in our country. There are many organizations on all sides of political issues that simply want to have an opportunity to compete, to discuss issues of public concern with their fellow citizens, and that want to hold public officials accountable for their views. They want to compete against each other in this marketplace of ideas, but be allowed to do so with the freedom that our first amendment has guaranteed.
We have the ACLU. In addition, Mr. Remcho, as a distinguished lawyer in California, represented in the case we were both involved with, the California Teachers Association, several unions, the trial lawyers, and I represented the Right-to-Life group. We all want to be able to compete in the free marketplace of ideas.
Now, in order to compete, though, it takes money. The U.S. Supreme Court recognized that. Just as it takes money to travel, it takes money to communicate in a free society. Money is what is used in order to buy the air time and to distribute literature. Indeed, someone had to buy the soap box when the first person stood on in that park in order to speak to his or her fellow citizens, and, certainly, there are ways to encourage smaller contributors to become involved in this process, such as restoring the tax credit for contributions of a small amount which used to exist in Federal law and still exists in some States.
However, the cynicism of voters—to a certain extent, we need to hold accountable the rhetoric of those who would seek to reform this system. After all, if people actually believe Mr. Bonifaz in his testimony, that money buys votes in this Congress, certainly voters would be cynical about the political process. I would ask him, if he knows of any of those, to name them, to report them to the Federal Bureau of Investigation so that people who would exchange money for votes may be dealt with. However, that is not the Congress that I know.
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The Congress that I know is people who are dedicated and as private citizens wanted to perform public service because of the issues they feel are important to our country and who are then supported by like-minded groups because of their stands on those issues. That is the Congress I know, not the one that Mr. Bonifaz wants everyone to believe exists.
Now, the first amendment is the supreme election law. It was political speech that the Founders had in mind when they passed the first amendment. It was not flag burning. It was not nude dancing. It was not pornography on the Internet. It was the ability of citizens to communicate with each other regarding issues of public concern, including the positions of candidates on the issues.
That is why the U.S. Supreme Court in Buckley was so clear about who was to retain control over what money is being spent in our elections. Was it to be Congress? Was it to be incumbent Members of Congress wanting to protect themselves against criticism by citizens, or would it be the people? The court said on page 57, ''In a free society ordained by our Constitution, it is not the government but the people individually as citizens and candidates and collectively as associations and political committees who must retain control over the quantity and range of debate on public issues in a political campaign.''
In order to do that, the U.S. Supreme Court created the express advocacy test that is in Buckley and reaffirmed in Massachusetts Citizens, that in order for speech to be subject to any government regulation, the speech had to contain—had to expressly advocate the election or defeat of a clearly identified candidate.
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In this respect, the court did know what they were saying. In fact, the court defined express advocacy in no less than eight separate portions of that decision, not as Mr. Moramarco would intimate that they just simply didn't know what they were doing. They repeated over and over the proposition that for something to be expressly advocating the election or defeat of a clearly identified candidate it had to contain, ''explicit words,'' or''by express terms,'' advocate the election or defeat of a clearly identified candidate.
And then for those who didn't know what that meant, they wrote footnote 52 to give examples of the type of words that would be used that would expressly advocate election or defeat of a clearly identified candidate. And then, of course, the Supreme Court in Buckley v. Valeo—excuse me, in Massachusetts Citizens in 1986 reaffirmed that express advocacy test, repeating that express advocacy depends upon the use of language such as, ''vote for,'' elect, et cetera.
Now, there has been a serious attempt and proposals made by three members of this panel that that line can be breached by adopting what has become known as the name or likeness test. Now, the name or likeness test would be, as they described, naming a candidate for Congress, for the Senate, for President, within a time period before an election, that is contained in various versions of McCain-Feingold or Shays-Meehan, and corporations to do it. If the citizen did it and were allowed to do it, they would have to report it.
In the testimony, the three people claimed that that would be constitutional; however, in neither their written nor oral testimony did they cite to a single word, a single phrase of Buckley, of Massachusetts Citizens or any other Supreme Court case, nor did they cite a single lower court decision that suggests that this Congress has the power to prohibit a person or a citizens group from naming a candidate prior to an election.
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They also did not point out that there are, in fact, four cases that have already been litigated in the Federal system that address this name or likeness test. The most recent one is the case in Michigan where both Michigan Right to Life, whom I represented, and Planned Parenthood of Michigan, that the ACLU represented, brought suit in Michigan against a rule adopted by the secretary of state that made it a crime to name a candidate within 45 days of a State election.
Two Federal judges, as a result of those two separate cases, struck down that 45-day rule, finding that it wasn't even close, that it wasn't even close to the express advocacy test.
It has the benefit, I would admit, of some clarity. However, its fundamental problem was that it would invade the ability of citizens to discuss issue advocacy, and that is, to discuss issues of public concern, to discuss what incumbent members of the State legislature are doing, to discuss what the positions of candidates on issues are; and it is those freedoms that allow representative democracy to go forward. They didn't mention either one of those cases.
Secondly, they did not mention the case of Vermont Right to Life, which the National Voting Rights Institute is an intervenor and which this morning was argued in the Second Circuit in New York City by me and a representative of the State and the Voting Rights Institute. In Vermont Right to Life v. Sorrell, the district court upheld a name or likeness statute but only by saying that any expenditure had to contain express advocacy of the election or defeat of a candidate in order to be subject to being reported.
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So the one example of the upholding of a name or likeness test was done in the context in which the court required that any communication subject to reporting contained express advocacy.
Nor did they mention West Virginians for Life which several years ago imposed a 60-day presumption that any voter guide distributed within 60 days of an election was political speech subject to regulation by the State and the district court struck that down as well. Thus, there is no support for this proposition that there is a name or a likeness test that this Congress may constitutionally impose, but finally, it is wrong to consider to do that.
Now, in the testimony of Mr. Briffault, he says on page 4 that it is unlikely that a communication referring to a candidate that is disseminated in this period, this 60-day period prior to an election, will have any impact on political activity other than the election of—the election itself. That statement is patently false.
This Congress is in session within 60-days prior to a general election. It is in session within 30 days prior to primary elections. There are votes that are taking place in this Congress within 60 days of an election. Many Members of Congress are candidates in that election. All the members running for reelection to the House are candidates in that election.
If National Right to Life could not mention the name of the candidate within 60 days from election, then in 1996, when there was a veto override within 60 days of the 1996 election of the Partial Birth Abortion Ban Act, that there was a veto override in both the House and the Senate within 60 days of the election.
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Nationally, it would have been a crime for the National Right to Life Committee to inform citizens of that veto override, to inform citizens of how their Member of Congress had voted on that particular measure. You couldn't mention what the President of the United States did to it, i.e., veto it, because you couldn't mention the President of the United States because after all he is a candidate for election in the fall of 1996. This would have a devastating effect on the ability of citizens groups to engage in grass-roots lobbying, education on various issues of public concern and their ability to influence legislation. This is a very detrimental proposal.
Mr. CANADY. Thank you.
[The prepared statement of Mr. Bopp follows:]
PREPARED STATEMENT OF JAMES BOPP, JR., ESQ., GENERAL COUNSEL, JAMES MADISON CENTER FOR FREE SPEECH
INTRODUCTION
I am James Bopp, Jr.,(see footnote 33) attorney at law, and I appreciate the opportunity to testify before this committee. A substantial part of my law practice involves defending clients from governmental incursions against constitutionally-protected freedom of speech and expression. I have defended issue advocacy through litigation, amicus curiae briefs, scholarly literature, and testimony before legislative bodies.(see footnote 34) The appended summary of my professional resume summarizes my work in this area. In addition, I serve as general counsel for the James Madison Center for Free Speech,(see footnote 35) and it is in that capacity that I was asked to testify today.
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In this testimony, I will: (1) summarize the constitutional protection for robust issue advocacy (i.e., communications which discuss issues of public concern, including the positions of candidates on issues and the actions of public officials, as distinguished from the express advocacy of the election or defeat of a clearly identified candidate) and (2) demonstrate by case examples the regime of intrusion and intimidation that results when government violates the bright-line distinction between issue advocacy and express advocacy and attempts to regulate or prohibit issue advocacy. These examples of Orwellian ''Big Brother'' intrusiveness illustrate what life would be like if certain so-called ''campaign finance reform'' proposals regulating issue advocacy are enacted into law.
I. ISSUE ADVOCACY IS CONSTITUTIONALLY PROTECTED.
In the free society ordained by our Constitution it is not the government, but the people—individually as citizens and candidates and collectively as associations and political committees—who must retain control over the quantity and range of debate on public issues in a political campaign. [Buckley v. Valeo, 424 U.S. 1, 57 (1976)]
In proposals for campaign finance reform, the strong First Amendment protection afforded issue advocacy is often ignored. This does not square with the history of strong protection of issue advocacy by the courts. A full account of the rationale underpinning constitutional protection for issue advocacy and of the relevant cases protecting it will not be given here because it is readily available in my prior testimony before bodies of the United States Congress(see footnote 36) and in my 1997 law review article, entitled The First Amendment Is Not a Loophole: Protecting Free Expression in the Election Campaign Context, which I co-authored with Richard E. Coleson. James Bopp, Jr. & Richard E. Coleson, The First Amendment Is Not a Loophole: Protecting Free Expression in the Election Campaign Context, 28 UWLA L. Rev. 1 (1997) (hereinafter ''The First Amendment Is Not a Loophole '').(see footnote 37) However, a brief recap of Buckley v. Valeo, the foundational Supreme Court case on which the whole edifice of issue-advocacy protection is built, is helpful to refresh recollection. The discussion immediately below deals with protection for issue advocacy in general, but further discussion of the law as it specifically applies to contributions and expenditures will be provided infra in the discussion of the FEC's ''coordination theory.''
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The Supreme Court has long and carefully watched over efforts to regulate political speech in order to ensure that the guarantees of the First Amendment are not denied.(see footnote 38) This is because such restrictions ''limit political expression 'at the core of our electoral process and of First Amendment freedoms.'' ' Buckley, 424 U.S. at 39 (quoting Williams v. Rhodes, 393 U.S. 23, 32 (1968)). Not only has the Court afforded strong constitutional protection for political speech in general—including the right to urge the election or defeat of a candidate—but it has afforded exceptionally strong constitutional protection for issue-oriented speech in particular. As a result, the Court has repeatedly given a narrowing construction to statutes regulating political speech so as to permit prohibition or restriction of only express advocacy, in order to shield the statutes from constitutional attack.
In a series of cases, the United States Supreme Court has drawn a distinction between electioneering, which may be regulated, and other expressions of free speech, including issue advocacy, which enjoy full First Amendment protection. In order to constitute electioneering, as distinguished from issue advocacy, the United States Supreme Court has adopted a bright-line test—that the communication must ''in express terms advocate the election or defeat of a clearly identified candidate for a public office.'' Buckley v. Valeo, 424 U.S. 1, 44 (1976) (per curiam).
In 1948, the Supreme Court considered the case of United States v. Congress of Industrial Organizations, 335 U.S. 106 (1948) (''C.I.O.''). C.I.O. concerned a federal statute prohibiting a corporation or labor organization from making ''any expenditure in connection with a federal election.'' Id. at 106–107 n.1. Under this provision, an indictment was returned against the C.I.O. and its president for publishing, in The CIO News, a statement urging all members of the C.I.O. to vote for a particular candidate for Congress in an upcoming election. Id. at 108. In affirming a dismissal of the indictment, the Court observed:
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If §313 were construed to prohibit the publication, by corporations and unions in the regular course of conducting their affairs, of periodicals advising their members, stockholders or customers of danger or advantage to their interests from the adoption of measures, or the election to office of men espousing such measures, the gravest doubt would arise in our minds as to its constitutionality. [Id. at 121.]
A lengthy footnote appended to this statement set forth several passages from case law wherein the Court had declared the specially protected nature of free speech concerning public policy and political matters:
''Free discussion of the problems of society is a cardinal principle of Americanism—a principle which all are zealous to preserve.'' Pennekamp v. Florida, 328 U.S. 331, 346 [(1946)].
''The case confronts us again with the duty our system places on this Court to say where the individual's freedom ends and the State's power begins. Choice on that border, now as always delicate, is perhaps more so where the usual presumption supporting legislation is balanced by the preferred place given in our scheme to the great, the indispensable democratic freedoms secured by the First Amendment.'' Thomas v. Collins, 323 U.S. 516, 529–30 [(1945)].
''For the First Amendment does not speak equivocally. It prohibits any law 'abridging the freedom of speech, or of the press.' It must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow.'' Bridges v. California, 314 U.S. 252, 263 [(1941)]. [C.I.O., 335 U.S. at 121–22 n.21.]
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In 1976, the Supreme Court considered a successor statute to the one discussed in C.I.O., The Federal Election Campaign Act of 1971, as amended in 1974. 2 U.S.C. §431 et seq. This new statute was reviewed in Buckley v. Valeo, 424 U.S. 1. Buckley dealt, inter alia, with a provision which limited '' 'any expenditure . . . relative to a clearly identified candidate.'' ' Buckley, 424 U.S. at 41 (quoting 2 U.S.C. §608(e)(1)). The provision placed a limit on the amount of an independent expenditure on behalf of a candidate. However, this provision was considered to be unconstitutionally vague. Buckley, 424 U.S. at 41. Therefore, the Court construed it with another provision of the same statute to require '' 'relative to' a candidate to be read to mean 'advocating the election or defeat of' a candidate.'' Id. at 42.
However, as the Buckley Court noted, this construction merely refocused the vagueness problem. The real problem, the Court noted, is that
the distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical application. Candidates, especially incumbents, are often intimately tied to public issues involving legislative proposals and governmental actions. Not only do candidates campaign on the basis of their positions on various public issues, but campaigns themselves generate issues of public interest. [Id. at 42.]
Because of the problem described, the Supreme Court settled on the ''express advocacy'' test as the line of demarcation between the permitted and the forbidden. This test is constitutionally mandated because only a statute applying only to a communication which expressly advocates the election or defeat of a clearly identified federal candidate has a sufficiently bright line of distinction to make it constitutionally defensible. The Supreme Court, in Buckley, explained the problem with a quotation from Thomas v. Collins, 323 U.S. 516, 535 (1945):
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[W]hether words intended and designed to fall short of invitation would miss the mark is a question both of intent and of effect. No speaker, in such circumstances, safely could assume that anything he might say upon the general subject would not be understood by some as an invitation. In short, the supposedly clear-cut distinction between discussion, laudation, general advocacy, and solicitation puts the speaker in these circumstances wholly at the mercy of the varied understanding of his hearers and consequently of whatever inference may be drawn as to his intent and meaning.
Such a distinction offers no security for free discussion. In these conditions it blankets with uncertainty whatever may be said. It compels the speaker to hedge and trim. [Buckley, 424 U.S. at 43.]
Thus, the Supreme Court, in Buckley, said that
[t]he constitutional deficiencies described in Thomas v. Collins can be avoided only by reading §608(e)(1) [placing a ceiling on independent expenditures] as limited to communications that include explicit words of advocacy of election or defeat of a candidate. [Id.]
Without such a clear line of demarcation, then, a speaker is forced to ''hedge and trim'' comments made on issues of public importance for fear he will be charged with forbidden electioneering. This is too heavy a burden on First Amendment rights to be constitutionally permitted.
The Buckley Court concluded that ''[t]he constitutional deficiencies'' of such unclear statutory language could only be cured (if at all) by reading the statute ''to apply only to expenditures for communications that in express terms advocate the election or defeat of a clearly identified candidate for a public office.'' Id. at 44. The Court added that ''[t]his construction would restrict the application of §608(e)(1) to communications containing express words of advocacy of election or defeat, such as 'vote for,' 'elect,' 'support,' 'cast your ballot for,' 'Smith for Congress,' 'vote against,' 'defeat,' 'reject.'' ' Id. at 44 n.52.(see footnote 39)
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''Public discussion of public issues which also are campaign issues readily and often unavoidably draws in candidates and their positions, their voting records and other official conduct. Discussions of those issues, and as well more positive efforts to influence public opinion on them, tend naturally and inexorably to exert some influence on voting at elections.'' [Id. at 42 n. 50 (quoting 171 U.S. App. D.C. 172, 226, 519 F 2d 821, 875 (D.C. Cir. 1975)).]
In sum, the Supreme Court created a bright-line distinction between issue advocacy, which may not be regulated, and express advocacy, which may be regulated if government can provide sufficient evidence to demonstrate that the regulation is narrowly tailored to effect only a compelling interest. Since Buckley nearly every Federal Court has adopted the ''express advocacy'' test.(see footnote 40)
*Denotes cases in which James Bopp, Jr. served as lead counsel for plaintiff.
II. ISSUE ADVOCACY IS AT RISK.
Failure to retain the bright-line protection of issue advocacy results in perilous erosion of free expression rights, with Orwellian invasions of the affairs of citizens and citizens groups. When I last testified I explained what this brave new world would look like in a series of cases demonstrating prior restraints and invasions of privacy. Those cases provided a glimpse of the future if so-called campaign finance reform regulating issue advocacy is ever established. Although the specter of such regulation still looms, American citizens have begun fighting for their First Amendment rights by challenging statutes prior to their enforcement rather than waiting for ''Big Brother'' to nab them after the fact.
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The attacks on free issue advocacy come from two directions: (1) state legislative, state agency, and state court efforts to ignore the express advocacy test and regulate issue advocacy, and (2) the Federal Election Commission's efforts to regulate political speech by claiming that it has authority over any ''coordinated expenditure'' by a group, even if the communication involved does not contain express advocacy. Both prongs impinge on constitutionally-protected issue advocacy by expanding the scope of government regulation beyond express advocacy. Each prong is discussed in turn.
A. Prong One: State Regulation Ignoring the Express Advocacy Test
State election laws often impinge on First Amendment freedoms through the definition of political action committees. A ''political action committee,'' or ''political committee,'' as it is often called in state legislation, is correctly defined as an entity which has as its major purpose, the nomination or election of candidates for public office. A political action committee is one which both meets the ''major purpose'' test and either makes contributions to candidates or engages in ''express advocacy.'' Buckley v. Valeo, 424 U.S. 1, 43, 74–75 (1976) (per curiam); see The First Amendment Is Not a Loophole at 8–9, 11–19.
A typical state legislative effort to expand the scope of the term ''political committee'' ignores the major purpose test entirely and defines the activity which qualifies a group as a political committee based only on the group making a contribution to a candidate or an expenditure for express advocacy. Id. at 8–9. For example, a state may define a group as a political committee if it makes contributions or expenditures of a certain statutory amount to ''influence'' an election, a very broad term that encompasses issue advocacy voter guides. See, e.g., West Virginians for Life v. Smith, 919 F. Supp. 954 (S.D.W.V. 1996) (striking down such a statute).(see footnote 41)
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State legislators have also attacked issue advocacy through independent expenditure provisions. In Buckley, the Supreme Court not only protected ''issue advocacy'' from infringement, but it also protected a species of ''express advocacy'' from governmental limitation, namely, ''independent expenditures.'' As the term implies, ''independent expenditures'' are disbursements for communications which expressly advocate the election or defeat of a candidate, but which are made independently of the candidate. The Buckley Court held that a limitation on independent expenditures in an election campaign violated the First Amendment to the United States Constitution because there was no compelling interest to justify such a burden on the exercise of First Amendment free speech rights. The Court initially observed that expenditure limitations
operate in an area of the most fundamental First Amendment activities. Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order ''to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people.'' [424 U.S. at 14 (citation omitted).]
The Court also noted that the
First Amendment protects political association as well as political expression . . . [T]he First and Fourteenth Amendments guarantee freedom to associate with others for the common advancement of political beliefs and ideas. [424 U.S. at 15 (citation omitted).]
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The Court then recognized that
restriction[s] on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. [Id.]
It added that
[being] free to engage in unlimited political expression subject to a ceiling on expenditures is like being free to drive an automobile as far and as often as one desires on a single tank of gasoline. [Id. at 19 n. 18.]
Based upon these principles, the Court concluded that the ''expenditure limitations [at issue in Buckley] represent substantial rather than merely theoretical restraints on the quantity and diversity of political speech.'' Id. Furthermore, the Court stated that while the contribution limits at issue in Buckley ''implicate fundamental First Amendment interests,'' independent expenditure ''ceilings impose significantly more severe restrictions on protected freedoms of political expression and association.'' Id. at 23.
Having determined that expenditure limitations constituted an infringement of expression and association, the Court then considered whether government could justifiably impinge upon these highly protected freedoms. The Buckley Court analyzed the constitutionality of the independent expenditure limitation as depending ''on whether the governmental interests advanced in its support satisfy the exacting scrutiny applicable to limitations on core First Amendment rights of political expression.'' Id. at 45–46. The Court announced that, because limitations on independent expenditures directly implicated the fundamental right to free political speech, it would apply heightened scrutiny when evaluating the constitutionality of such provisions: the statutes would have to be narrowly tailored to advance a compelling governmental interest.
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The Court concluded that because of the nature of independent expenditures, government interests in preventing corruption and the appearance of corruption—though compelling in the context of contribution limitations—were ''inadequate'' to justify the limitations on independent expenditures. Id. at 46. The reason was quite simple:
the independent advocacy restricted by the [independent expenditure] provision does not presently appear to pose dangers of real or apparent corruption comparable to those identified with large campaign contributions. [Id.]
The Court then noted that
[w]hile the independent expenditure ceiling thus fails to serve any substantial government interest in stemming the reality or appearance of corruption in the electoral process, it heavily burdens core First Amendment expression . . . Advocacy of election or defeat of candidates for [office] is no less entitled to protection under the First Amendment than the discussion of political policy generally or advocacy of the passage or defeat of legislation. [Id. at 47–48.]
In sum, the Supreme Court found that limitations on independent expenditures directly infringe upon ''core political speech,'' the most protected of First Amendment rights. Furthermore, it found that there was no compelling governmental interest to justify such a serious infringement. Consequently, it held that the independent expenditure limitation at issue in Buckley ''unconstitutional under the First Amendment.'' Id. at 51.
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In addition, state legislators have banned corporate issue advocacy including that of corporations that pose no threat to the election process. The rationale for allowing any regulation of corporate political speech is described by the United States Supreme Court as
the need to restrict 'the influence of political war chests funneled through the corporate form,' [FEC v. National Conservative Political Action Committee, 470 U.S. 480, 501, 105 S.Ct. 1459, 1470, 84 L.Ed.2d 455 (1985)]; to 'eliminate the effect of aggregated wealth on federal elections,' Pipefitters [v. United States, 407 U.S. 385, 416, 92 S.Ct. 2247, 2264, 33 L.Ed.2d 11 (1972)]; to curb the political influence of 'those who exercise control over large aggregations of capital,' [U.S. v.] Automobile Workers, [352 U.S. 567, 585, 77 S.Ct. 529, 538, 1 L.Ed.2d 563 (1957)]; and to regulate the 'substantial aggregations of wealth amassed by the special advantages which go with the corporate form of organization,' [FEC v.] National Right to Work Committee, [459 U.S. 197, 207, 103 S.Ct. 552, 559, 74 L.ED.2D 364 (1982)]. [FEC v. Massachusetts Citizens For Life, Inc., 479 U.S. 238, 257, 107 S.Ct. 616, 627, 93 L.Ed.2d 539 (1986) (''MCFL'')]
The Supreme Court then explained that the above justifications are insufficient to support the regulation of groups whose major purpose is not express advocacy.
Regulation of corporate political activity thus has reflected concern not about use of the corporate form per se, but about the potential for unfair deployment of wealth for political purposes. Groups such as MCFL, however, do not pose that danger of corruption. MCFL was formed to disseminate political ideas, not to amass capital. The resources it has available are not a function of its success in the marketplace, but its popularity in the political marketplace. While MCFL may derive some advantages from its corporate form, those are advantages that redound to its benefit as a political organization, not as a profit-making enterprise. In short, MCFL is not the type of 'traditional corporatio[n] organized for economic gain.' NCPAC, supra, 470 U.S., at 500, 105 S.Ct., at 1470, that has been the focus of regulation of corporate political activity. [MCFL, 479 U.S., at 259, 107 S.Ct., at 628]
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The Supreme Court then concluded
It is not the case, however, that MCFL merely poses less of a threat of the danger that has prompted regulation. Rather, it does not pose such a threat at all. Voluntary political associations do not suddenly present the specter of corruption merely by assuming the corporate form. [MCFL, 479 U.S., at 263, 107 S.Ct., at 630]
State efforts—in Iowa, Kansas, Michigan, Arkansas, North Carolina and Alaska—to regulate issue advocacy through the definition of ''political committees,'' ''independent expenditures,'' and ''corporate bans'' are discussed next, along with the attendant crushing burdens on free expression, free association, and privacy rights which result when the bright-line major purpose and issue advocacy lines are violated.
1. Iowa's Indifference to the Express Advocacy Test
Iowa Right to Life Commitee, Inc. (''IRLC'') is a non-profit corporation whose primary purpose is to ''present full detailed and factual information upon which individuals and the general public may make an informed decision about the various topics of fetal development, abortion, alternatives to abortion, euthanasia, infanticide and prevention of cruelty to children . . .'' Iowa Right to Life Committee, Inc. v. Williams, No. 4–98–CV–10399, slip op. at 3 (October 23, 1998).(see footnote 42) In order to raise money to support its purpose IRLC engages in a limited amount of business activity, including selling fetal model displays, prolife pins and literature, and renting booth space at its annual conventions. Id. It also publishes a quarterly newsletter as well as voter guides and legislative scorecards to inform the public about the positions of candidates for state office on issues of importance to IRLC. Id.
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Iowa Right to Life State Political Action Committee (''IRLSPAC'') is a state political action committee affiliated with IRLC that is not directly associated with any political candidate, campaign or political committee. Id. slip op. at 5. IRLSPAC makes both contributions to candidates and independent expenditures. Id. slip op. at 5–6.
On July 17, 1998, IRLC and IRLSPAC filed a pre-enforcement challenge against several provisions of Iowa's Campaign Disclosure laws. After learning that the Iowa Ethics and Campaign Disclosure Board (the ''Board'') had adopted an expansive definition of express advocacy in 351 IAC 4.100(1) just prior to the commencement of the action, Plaintiffs filed an amended complaint on September 14, 1999. Specifically, IRLC challenged those provisions that banned corporations from making expenditures ''for the purpose of influencing the vote of an elector,'' the definition of a political committee, the statute that required permanent organizations that are organized primarily for other purposes to form a political committee if they spend more than $500 to support or oppose a candidate, and the Board's definitions of ''express advocacy'' and ''political corporation.'' IRLSPAC challenged those provisions governing ''independent expenditures.''
As an initial step, plaintiffs requested a preliminary injunction which the District Court granted. The District Court correctly ascertained that the '''heart' of this case rests on the distinction between 'issue advocacy' and 'express advocacy.'' ' Id. Slip op. at 8. 351 IAC 4.100(1)(a) defines ''express advocacy'' in the same manner as the United States Supreme Court in Buckley and that provision was not challenged. However, 351 IAC 4.100(1)(b) further defines ''express advocacy'' as that which
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[w]hen taken as a whole and with limited reference to external events such as the proximity to the election, could only be interpreted by a reasonable person as containing advocacy of the election or defeat of one or more clearly identified candidate(s) or a ballot issue because:
(1) The electoral portion of the communication is unmistakable, unambiguous, and suggestive of only one meaning; and
(2) Reasonable minds could not differ as to whether it encourages action to elect or defeat one or more clearly identified candidates(s) or a ballot issue or encourages some other kind of action.
The District Court first noted that the challenged definition of ''express advocacy'' was virtually identical to language contained in 11 C.F.R. §100.22(b). It then relied on cases interpreting that FEC rule to determine that the ''plaintiffs would likely succeed on the merits that the regulation is unconstitutionally overbroad.'' Williams, Slip op. at 8–10. Specifically, the court focused on the following:
FEC restriction of election activities was not to be permitted to intrude in any way upon the public discussion of issues. What the Supreme Court did was draw a bright line that may err on the side of permitting things that affect the election process, but at all costs avoids restricting, in any way, discussion of public issues. The Court seems to have been quite serious in limiting FEC enforcement to express advocacy, with examples of words that directly fit that term. The advantage of this rigid approach from a First Amendment point of view, is that it permits a speaker or writer to know from the outset exactly what is permitted and what is prohibited. In the stressful context of public discussions with deadlines, bright lights and cameras, the speaker need not pause to debate the shades of meaning in language. [Maine Right to Life Committee, Inc. v. FEC, 941 F. Supp. 8, 12 (D. ME), aff'd per curiam, 98 F.3d 1 (1st Cir. 1996), cert. denied, 118 S.Ct. 52 (1997) (''MRLC'')].(see footnote 43) [Williams, slip op. at 10]
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Without a bright line, ''what is issue advocacy a year before an election may become express advocacy on the eve of the election and the speaker must continually re-evaluate his or her words as the election approaches.'' Id. The constant re-evaluation required under such an expansive definition of issue advocacy is a significant burden on free speech. Left unchallenged, Iowa's expansive definition of express advocacy would have silenced speech at the point it became most valuable and acted as a trap for the unwary.
The District Court then turned to the ban on corporate expenditures found at Iowa Code §56.15(4) which states:
The restrictions imposed by this section relative to making, soliciting or receiving contributions shall not apply to a nonprofit corporation or organization which uses those contributions to encourage registration of voters and participation in the political process, or publicizes public issues, or both, but does not use any part of those contributions to endorse or oppose any candidate for public office.
351 IAC 4.82 which was adopted to implement section 56.15 states:
These rules do not prevent a corporate entity from providing or publicizing voter registration procedures, election day information, voting procedures or other voter education information, so long as the information provided is not designed to influence the vote of the elector.
Further, 351 IAC 4.86 sets forth the standard used to determine whether a particular corporation would be exempt from Iowa Code §56.15's general ban on the use of corporate funds. That rule provides:
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The prohibitions applicable to corporate entities shall not apply to political corporations which meet all of the following tests:
1. The corporation was organized solely for political purposes and cannot engage in business activities.
2. The corporation is not sponsored by a business corporation or labor union, and has a policy of refusing contributions from corporations or unions.
3. The corporation has no shareholders or others which have a claim on its assets or earnings.
A corporate entity may apply for status as a political corporation under Iowa Code chapter 56 by submitting a letter signed by a corporate officer which affirms the above requirements and provides other pertinent details of the corporations activities. A letter of approval or denial from the board will be provided to the corporation. The acceptance of contributions from a corporation seeking status as a political corporation is subject to the letter of approval and, if approval is not granted, any corporate contributions received shall be refunded by the candidates' committees or other political committees. [351 IAC 4.86]
Because IRLC engages in some minor business activities and has no policy preventing it from receiving contributions from unions or business corporations it fails to qualify for an exemption under the plain language of 351 IAC 4.86.
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Although 351 IAC 4.86's language was adopted from the United States Supreme Court's opinion in FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986) (''MCFL''), it fails to take into account the reasons for the exception carved out in MCFL. The MCFL court stated that purpose as follows:
We acknowledge the legitimacy of Congress' concern that organizations that amass great wealth in the economic marketplace not gain unfair advantage in the political marketplace . . . Some corporations [however] have features more akin to voluntary political associations than business firms, and therefore should not have to bear burdens on independent spending solely because of their incorporated status. [Id. 479 U.S. at 263.]
At least one Court has stated that MCFL was ''an application . . . of First Amendment jurisprudence to the facts in MCFL'' and, thus, the underlying rationale should be applied to the facts before the court rather than a rigid adherence to the three specific prongs set forth in MCFL. Day v. Holahan, 34 F. 3d 1356, 1363–64 (8th Cir. 1994).(see footnote 44) Specifically, the court should consider whether the corporations political resources ''reflect political support,'' whether the business activities of the corporation are ''incidental to its political purposes,'' and whether the organization has served as a ''conduit for the type of direct spending that creates a threat to the political marketplace.'' Id. Using the underlying rationale of MCFL as articulated in Day the District Court determined that the ''IRLC is likely to succeed on the merits of its argument that rule 4.86 unconstitutionally infringes on its right to free speech.'' Williams, slip op. at 16.(see footnote 45)
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The District Court next turned to IRLC's claim that the definition of a ''political committee'' was overbroad. A ''political committee'' is defined, in relevant part, as:
Political committee also includes a committee which accepts contributions in excess of five hundred dollars in the aggregate, makes expenditures in excess of five hundred dollars in the aggregate, or incurs indebtedness in excess of five hundred dollars in the aggregate in a calendar year to cause the publication or broadcasting of material in which the public policy positions or voting record of an identifiable candidate is (sic) discussed and in which a reasonable person could find commentary favorable or unfavorable to those public policy positions or voting record. [Iowa Code §56.2(16).]
IRLC claimed that this provision was overbroad because the words ''for the purpose of supporting or opposing a candidate for public office'' were not defined. According to the Court the plain meaning of the words ''support'' and ''oppose,'' as defined in the American Heritage College Dictionary, include issue advocacy. Williams, slip op. at 17. Thus, contrary to Buckley, the definition encompassed organizations that did not engage in express advocacy. The District Court held that IRLC was likely to succeed on that claim as well. Id.
Iowa Code §56.6(6) states
A permanent organization temporarily engaging in activity which would qualify it as a political committee shall organize a political committee and shall keep the funds relating to that political activity segregated from its operating funds. The political committee shall file reports in accordance with this chapter. When the permanent organization ceases to be involved in the political activity it shall dissolve the political committee.
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Because Iowa Code §56.6(6) relies on the definition of a political committee to set its parameters, the District Court held that IRLC was likely to succeed on the merits of that issue as well. Id. at 18.
Finally, the District Court turned to IRLSPAC's challenge of the ''independent expenditures'' provisions. Iowa Code §56.13(1) and several provisions of the Iowa Administrative Code required that all independent expenditures be submitted to the ''benefited candidate'' so that the candidate could either approve or disavow the expenditure. IRLSPAC claimed that these provisions violated the constitution because they were not narrowly tailored to serve a compelling state interest, violated its right to choose the content of its message, the prohibition on compelled speech, and its right not to associate with another or another's speech. The District Court determined that the provisions were not narrowly tailored to serve a compelling state interest and declined to address the remaining constitutional claims. Williams, slip op. at 22.
In making that determination, the District Court first cited Atkins v. FEC, 101 F.3d 731, 741 (D.C. Cir. 1996), vacated on other grounds, XX U.S. XX, 118 S. Ct. 1777 (1998), for its conclusion that ''[i]ndependent expenditures are the most protected form of political speech because they are closest to pure issue discussion and therefore farthest removed from the valid gaol of preventing election corruption.'' The District Court also relied on Day v. Holahan, 34 F.3d 1356 (8th Cir. 1994), in which the plaintiffs challenged a statute that both increased the spending limit of the candidate not benefitted by an independent expenditure and paid that candidate one half of the amount disbursed as an independent expenditure.
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The Eighth Circuit found the statute was a content-based restriction that produced an unconstitutional ''chilling effect'' on the person or organization making the independent expenditure. As explained by the court: ''The knowledge that a candidate who one does not want to be elected will have her spending limits increased and will receive a public subsidy equal to half the amount of the independent expenditure . . . chills the free exercise of that protected speech.'' [Williams, slip op. at 21 (citing Day, at 1359).]
The District Court then decided, that similar to the statute at issue in Day, the independent expenditure provisions target ''independent expenditures'' and, thus, chill the free exercise of protected speech. Williams, slip op. at 21.
The District Court then properly shifted the burden to the State to establish that the statutes and regulations are narrowly drawn to serve a compelling state interest. Id. The State's proffered interest, in ''assuring that independent expenditures are, indeed, independent and not a means by which a candidate can circumvent including contributions on a candidate's own disclosure report,'' was then found constitutionally insufficient to justify the burden on free speech. Id. at 22.
The District Court found that the plaintiffs' were likely to succeed on the merits on all of the issues that were raised in their motion for preliminary injunction. After examining the remaining preliminary injunction factors, the District Court granted IRLC and IRLSPAC a preliminary injunction. The State has appealed the District Court's decision with regard to the definition of express advocacy and the independent expenditure provisions. Further, the court has stated that if the Appeals Court affirms the decision, it will request an opinion from the Iowa Supreme Court as to whether the definition of a ''political committee'' can be narrowed to include only express advocacy which would eliminate the constitutional problems with the definition. Thus, the District Court has protected issue advocacy as required by the First Amendment and explained in Buckley.
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2. Kansas' State Agency Effort to Regulate Issue Advocacy
During Kansas' 1998 primary elections, Kansans For Life, Inc. (''KFL''), ran an ad promoting its issues. That ad took a candidate to task for claiming to be pro-life when his supporters included well known abortionists. The text of that ad is as follows:
Have you ever had someone try to trick you? You know twist the truth to make you think one thing instead of another? Children are quite good at this.
Unfortunately, Governor Bill Graves is trying to do the same thing, telling you he is pro-life when, in fact he is a strong supporter of legal abortion in Kansas. During his last campaign, Gov. Bill Graves held a rally for his supporters—Dr. George Tiller, the infamous late-term abortionist was in attendance to support Bill Graves. We know that Bill Graves props up the abortion industry because we are Kansans For Life—it's our job to know who is pro-life and who is pro-abortion. Yet there are political ads, which this radio station is required by law to run, by Bill Graves trying to deceive you.
The truth is David Miller, who is challenging Bill Graves for Governor, is pro-life. David Miller has always been pro-live. David Miller will not try to fool you just because it is an election.
Now you know the truth!
Paid for by Kansans For Life.
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It should be immediately pointed out that the advertisement neither urged people to vote against Bill Graves nor encouraged citizens to vote for David Miller. Instead, they made known each man's position on abortion. Any voter listening to the ad would, as a result, know more about the candidates' positions on abortion than they did before—whether they liked that position, or not. This is an example of what the U.S. Supreme Court has described as constitutionally-protected ''issue advocacy.''
Still, the Kansas Governmental Ethics Commission (the ''Commission''), based on an anonymous complaint, suggested that Kansans For Life request an advisory opinion as to whether its ad was express advocacy. After reviewing the ad the Commission determined, in spite of the clear statutory definition, that the ad constituted express advocacy of the election or defeat of a candidate and, therefore, was subject to the disclosure requirements of the Kansas Campaign Finance Act.(see footnote 46)
The statute further provides at 25–4143(h) that ''expressly advocate'' means:
''any communication which uses phrases including, but not limited to: (A) 'Vote for secretary of state'; (B) 'reelect your senator'; (C) 'support the democratic nominee'; (D) 'cast your ballot for the republican challenger for governor'; (E) 'Smith for senate'; (F) 'Bob Jones in 98'; (G) 'vote against Old Hickory'; (H) 'defeat' accompanied by a picture of one or more candidates; or (I) 'Smith's the one.'' ' [Kansans For Life, Inc. v. Gaede, 1999 WL 115156 *2–3 (D. Kansas, February 24, 1999).]
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The court based on Buckley and the ''arguably broader'' definition of express advocacy elucidated by the ninth circuit in FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987) cert. denied, 484 U.S. 850 (1987), determined that
[t]he enforcement policy described in the advisory opinion at issue does not conform with any of the approaches described above. It does not restrict regulation to advertisements which use certain ''buzz'' words. Nor does it restrict regulation to advertisements which can only be reasonably interpreted as advocating the election or defeat of a candidate; which contain a clear plea to action; and which are unambiguous. [Kansans For Life, 1999 WL 115156 at *9–10.](see footnote 47)
The District Court then declared that ''plaintiff has established a realistic danger that defendants will apply an unconstitutionally vague and overbroad enforcement policy against issue advocacy by plaintiff that is protected by the First Amendment'' and declared the policy unconstitutional. It also permanently enjoined the Commission from enforcing Kansas' campaign financing laws using the overbroad definition of express advocacy.
3. Michigan's ''Name or Likeness'' prohibition
In 1998, the Michigan Secretary of State, pursuant to her authority to implement the Michigan Campaign Finance Act, promulgated Rule 169.39(b). The Rule was effective on August 12, 1998, and became enforceable on September 19, 1998. The relevant portion of that Rule states:
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Except as otherwise provided in this rule, an expenditure for a communication that uses the name or likeness of 1 or more specific candidates is subject to the prohibition on contributions and expenditures in section 54 of the act if the communication is broadcast or distributed within 45 calendar days before the date of an election in which the candidate's name is eligible to appear on the ballot. [M.C.L.A. 169.39b (emphasis added).]
Section 54 of the Act, M.C.L.A. 169.254, prohibits corporations from making expenditures in support of or in opposition to any candidate for state office.
Two groups, Right to Life of Michigan, Inc. (''RLM''), and Planned Parenthood Affiliates of Michigan, Inc. (''PPAM''), brought separate pre-enforcement challenges to the rule claiming that it was overbroad because it encompassed protected issue advocacy and, thus, violated their right to free speech under the First Amendment. In both cases, the State claimed that the rule was a permissible infringement of the corporations' First Amendment rights because the State had a compelling interest in protecting against the real or perceived corrupting influence on the election process by corporations and labor unions, and that the regulation of corporate political activity is proper because of the potential for the unfair deployment of wealth for political purposes.
On September 16, 1998, the United States District Court for the Western District of Michigan, held that the Rule was unconstitutionally overbroad because, as written, the Rule prohibited not only express advocacy but also issue advocacy. ''The rule prohibits a statement that Candidate X introduced or sponsored specific legislation; that Candidate Y voted against specific pending legislation; or that Candidate Z had a birthday, was in an accident, or died.'' Right to Life of Michigan, Inc. v. Miller, 23 F. Supp. 2d 766, 769 (W.D. Mich. 1998).(see footnote 48) The court then found that the State's proffered compelling interest was merely a request for it to
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ignore the express advocacy distinction set forth in Buckley and adopt instead a less stringent rule that would allow state regulation of all corporate speech in the 45 days prior to an election that names or depicts a candidate, regardless of the content of the message, on the basis that it might constitute indirect advocacy on behalf of or against a candidate. [Id. at 770 (emphasis in original).]
Similarly, the United States District Court for the Eastern District of Michigan, decided on September 21, 1998, that the rule was facially unconstitutional. Planned Parenthood Affiliates v. Miller, 21 F. Supp.2d 740, 745 (E.D. Mich. 1998). The District Court for the Eastern District of Michigan determined that the ''[t]he Rule as drafted infringes on protected speech by prohibiting expenditures for issue advocacy.'' Id. The Court further determined that the Rule was not justified by a compelling state interest because it covered corporations, like PPAM, which were formed to disseminate political ideas, not to amass capital, and, thus, corporations which clearly do not possess the potential for the unfair deployment of wealth for political purposes. Id.
As demonstrated above, the Secretary's rule essentially defined express advocacy as any communication which included the ''name or likeness'' of a candidate regardless of the message. This clear violation of the ''express advocacy'' test required the District Courts' independent decisions to permanently enjoin the enforcement of the rule. Once again, the court's vigilance protected free speech from misguided agency efforts to regulate issue advocacy.
4. Arkansas's Unconstitutionally Low Contribution Limits
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After the Campaign Contribution Limits and Disclosure Act (the ''Act'') was passed by initiative in 1996, three individuals, Ron Russell, Kent Ingram, and William R. Austin along with Associated Industries of Arkansas Political Action Committee brought a pre-enforcement challenge to several of its provisions on February 3, 1997, in the Eastern District of Arkansas. Russell v. Burris, 978 F.Supp. 1211 (E.D. Ark. 1997) (hereinafter ''Russell I''). The plaintiffs also challenged several provisions of prior legislation that remained unchanged by the Act's provisions. Id. Shortly thereafter, another individual Marianne Linane(see footnote 49) and Arkansas Right to Life State Political Action Committee brought a similar pre-enforcement challenge in the Western District of Arkansas. Arkansas Right to Life State Political Action Committee v. Butler, 983 F. Supp. 1209 (W.D. Ark. 1997) (hereinafter ''ARLSPAC I'').(see footnote 50)
The Russell plaintiffs
claim[ed] that the following provisions of [the Act] violate[d] their rights to freedom of political expression (speech and association under the First Amendment: (1) the $100 and $300 limits on campaign contributions to candidates; (2) [the Act's] authorization for local jurisdictions to set even lower contribution limits; and (3) the $500 limit to annual contributions a person may give to an independent expenditure committee. The plaintiffs challenge, on the same grounds, Arkansas $2000 per person limit on annual contributions to an approved PAC . . . The plaintiffs claim further that in allowing small donor PACs to contribute $2500 per election to a candidate, Arkansas denies equal protection of the laws to approved PACs, which are subject to the $100 and $300 individual contribution limits. [Russell I, at 1216–17.]
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The Eastern District Court subsequently held that
(1) the $100 dollar (sic) contribution limit on the amount individuals can contribute to certain candidates was constitutional, except as applied to the offices of Supreme Court Justices and Court of Appeals Judge; (2) the $300 dollar (sic) limit on the amount individuals can contribute to enumerated statewide offices was unconstitutional; (3) the $100 and $300 limits on the amount that approved PACs may donate to candidates for state and local offices, as opposed to the $2,500 limit on the amount small-donor PACs may donate to candidates was constitutional and did not violate the Equal Protection Clause of the Fourteenth Amendment; (4) the $200 limit was constitutional; (5) plaintiffs lacked standing to challenge the constitutionality of the $5000 limit; and (6) plaintiffs' claim that the authority granted to local jurisdictions to set lower contribution limits was not ripe. [Arkansas Right to Life State Political Action Committee v. Butler, 29 F.Supp.2d 540, 542 (W.D. Ark. 1998) (opinion after appeal) (hereinafter ''ARLSPAC III'').](see footnote 51)
All parties subsequently appealed.
Meanwhile the ARLSPAC plaintiffs
claim[ed] that certain provisions of Arkansas' campaign finance laws impinge[d] on their First Amendment rights to free speech and association, as well as, their Fourteenth Amendment right to equal protection. Specifically, plaintiffs claim that Arkansas' campaign finance laws violate the First Amendment by: (1) unreasonably limiting the amounts that political action committees (hereinafter ''PACs'') and individuals may contribute to other PACs and political candidates; (2) requiring persons who make independent expenditures to place disclaimers on political advertisements; (3) conditioning receipt of a credit on the content of speech;(see footnote 52) (4) banning campaign contributions during sessions of the General Assembly; and (5) granting authority to localities to set even lower contribution limits than state law imposes. Plaintiffs allege that the Act violates the Equal Protection Clause of the Fourteenth Amendment by treating similarly situated persons differently with respect to the amounts that they may contribute and the benefits they might receive. Finally, plaintiffs contend that the contribution limits contained in Title 7 of the Arkansas Code are unconstitutional on their face. Plaintiffs seek declaratory and injunctive relief from this court. [ARLSPAC I, at 1213–14.]
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In response to the ARLSPAC plaintiffs' motion for summary judgment the District Court denied plaintiffs' motion for summary judgment on all of their claims with one exception; it found the $300 limit on contributions to candidates for governor unconstitutional. On appeal, the Eighth Circuit affirmed stated that it had resolved the constitutional issues in the companion case of Russell II v. Burris, 146 F.3d 563 (8th Cir. 1998) (''Russell II''),affirmed the judgment of the trial court and remanded for further proceedings consistent with this opinion. Arkansas Right to Life State Political Action Committee v. Butler, 146 F.3d 558, 560–561 (8th Cir. 1998).(see footnote 53)
In Russell II, the Eighth Circuit stated
We also believe that the candidate contribution limits set forth in [the Act] are too low to allow meaningful participating in protected speech and association. See Carver, 72 F.3d at 641–42. In Buckley, 424 U.S. at 20–35, 96 S.Ct. 612, the Supreme Court approved a $1,000 contribution limit as a narrowly tailored means to address the problem of large contributions. As we noted in Day v. Holahan, 34 F.3d 1356, 1366 (8th Cir. 1994), cert. denied, 513 U.S. 1127, 115 S.Ct. 936, 120 L.Ed.2d 881 (1995), inflation has eroded approximately 60 percent of the value of a dollar since 1976. A $1,000 contribution in 1976 would thus be worth about the same as a $2,500 contribution today. We recognize that the contribution limit upheld in Buckley does not constitute a constitutional minimum and that we may not fine-tune the contribution limits established by [the Act]. See Carver, 72 F.3d at 641. We must, however, invalidate the contributions limitations if they are different in kind from those that Buckley upheld. See Id. [Russell II, at 570.](see footnote 54)
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The Court then determined that the $100 and $300 contribution limits to candidates were different in kind from the $1000 contribution limit approved in Buckley, and, thus, were unconstitutionally low. Russell II, at 571. It further held that $200 contribution limit to PACs was different in kind from the limits approved in Buckley and an unconstitutional infringement on free speech and association. Id. The Court then declared that the $2,500 limit on candidate contributions by ''small-donor'' PACs was a violation of the equal protection clause because it burdened ordinary PACs more than small-donor PACs. Id. at 572. However, the Court found that the challenge to the provision allowing local governments to set lower limits was not ripe because no local government had availed itself of that power. Id. at 573. The case was then remanded to the District Court ''for the entry of a declaratory and injunctive relief consistent with this opinion.'' Id.
On remand, the ARLSPAC plaintiffs renewed their motion for summary judgment. The District Court enjoined enforcement of those provisions that placed a $500 limit on contributions to independent expenditure committees, that required a disclaimer to be placed on independent expenditures, and that prohibited contributions to office holders during the 30 days before, during, and after the regular session of the General Assembly. Specifically, the District Court, after noting that the State had failed to present evidence that large contributions to independent expenditure committees has attributed to actual or perceived corruption, held that ''$500 limit is unconstitutional as a matter of law because it is too low to allow meaningful participation in the political process and, thus, is not narrowly tailored to serve the state's alleged compelling interest.'' ARLSPAC III, at 546–47.
Next, the Court held that the identification requirement was constitutional but that the State had not demonstrated a compelling interest for requiring an additional disclaimer and thus, that the disclaimer provision was unconstitutional as a matter of law. Id. at 549–550. Finally, the Court held that the 30 day black-out period on contributions to incumbents was not narrowly tailored because ''it does not take into account the fact that corruption can occur any time, and that only large contributions pose a threat of corruption.'' Id. at 553.
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The Eighth Circuit, by its recognition that Buckley did not set a constitutional minimum for contribution limits, properly evaluated whether the low limits set by the Act were so low as to prevent meaningful participation in political discourse. Protecting free speech in this manner is necessary to ensure that our founding fathers' vision of that right is not eroded.
5. North Carolina's Attack on Issue Advocacy
While preparing for North Carolina's 1996 general election, North Carolina Right to Life, Inc. (''NCRL''), North Carolina Right to Life Political Action Committee (''NCRLPAC''), and NCRL's president Barbara Holt became concerned that some of the activities in which they wished to engage might violate North Carolina's election law. North Carolina Right to Life, Inc. v. Bartlett, 168 F.3d 705, 709 (4th Cir. 1999).(see footnote 55) Specifically, NCRL feared that the distribution of its voter guides would make NCRL a political action committee under the Statutes and/or violate North Carolina's ban on corporate expenditures for a political purpose.
To determine whether these concerns were valid, NCRL requested an advisory opinion from the Chief Deputy Director of the State Board of Elections (the ''Board'') which inadvertently included an endorsement page from NCRLPAC. The Board responded that the voter guide would violate the corporate prohibition against corporate expenditures and that any expenditure for a political purpose would make NCRL a political committee. After realizing the inadvertent inclusion of NCRLPAC's endorsement page, NCRL sent a second letter to the Board asking whether the distribution of the voter guide without that page would violate North Carolina's election laws. Again the Board responded that it would. Thus, they commenced their pre-enforcement challenge to several provisions of North Carolina's election and campaign finance provisions.
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In their suit, NCRL challenged the definition of a political committee as overbroad because it includes groups that engage only in issue advocacy and the State's total ban on corporate expenditures. ''NCRLPAC and Holt challenged the provision prohibiting lobbyists, and the political committees that employ them, from contributing to members and candidates for the General Assembly and Council of State while the General Assembly is in session'' and its counterpart ''prohibiting members and candidates for the General Assembly and Council of State from soliciting contributions from lobbyists and the political committees that employ them.'' Id. Finally, NCRLPAC challenged the provision that required it to ''provide prospective donors with the name of the candidate for whom the money will be used.''(see footnote 56)
Id. at 709–710. Each of the plaintiffs sought declaratory and injunctive relief on each of their claims. Id. at 710.
North Carolina General Statute §163–278.6(14) defines a political committee as ''a combination of any two or more individuals, or any person, committee, association, or organization, the primary or incidental purpose of which is to support or oppose any candidate or political party or to influence or attempt to influence the result of an election.'' (Emphasis added). ''The consequences of finding NCRL a political committee are substantial—NCRL would be required to resister as such, keep detailed records of its expenditures and contributions, and file organizational and financial reports with the State.'' North Carolina Right to Life, at 712 (citing N.C. Gen.Stat. §163–278.7(b), .8, .9, .11).
The State requested that the Court impose a narrowing construction to save the statute from unconstitutionality. However, the court could not because
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[f]irst, unlike the provisions of FECA, North Carolina's definition expressly sweeps within its ambit those groups that only incidentally engage in express advocacy. This is a much broader definition of political committee than that at issue in Buckley, and to save it would require quite a stretch—in fact, we would have to excise the word ''incidental'' from the statute.
Second, the North Carolina definition of political committee covers groups engaging in issue advocacy by explicitly juxtaposing express and issue advocacy, and thereby indicating that it encompasses both. Specifically, the definition covers any group ''the primary or incidental purpose of which is to support or oppose any candidate . . . or to influence or attempt to influence the result of any election.'' The only reasonable reading of this definition is that political committee encompasses both entities that have as a primary or incidental purpose supporting a candidate—i.e., engaging in express advocacy—and those that merely wish to influence an election—i.e., engage in issue advocacy. To accept the State's proffered interpretation would read the references to influencing elections (a class form of issue advocacy) right out of the statute. [Id. at 712–713.]
Thus, the court was unable to narrowly construe the statute so as to save it from being unconstitutionally vague and overbroad.
With regard to NCRL's challenge to North Carolina's ban on corporate expenditures and contributions for political purposes, the court found that the statute was ''substantially overbroad and thus unconstitutional.'' Id. at 714. Specifically, it found that by failing to exclude MCFL type organizations from its ambit ''North Carolina law fails 'to distinguish between corporations which pose a threat to the integrity of the political process and those which do not.'' ' Id. (quoting the district court). In making its determination, the Fourth Circuit ''agree[d] with those circuits that have addressed the question, each of which has held that the list of nonprofit corporate characteristics in MCFL was not 'a constitutional test for when a nonprofit corporation must be exempt,' but 'an application, in three parts, of First Amendment jurisprudence to the facts in MCFL.' '' Id. (citing Day v. Holahan, 34 F.3d 1356, 1363 (8th Cir. 1994); see also FEC v. Survival Educ. Fund, Inc., 65 F.3d 285, 292 (2d Cir. 1995)).
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The Court then turned its attention to the challenges regarding contributions by lobbyists and their employers. The Fourth Circuit refused to find either provision unconstitutional because the laws were narrowly tailored to serve the state's compelling interest in avoiding corruption and the appearance of corruption. North Carolina Right to Life, at 716. Specifically, the court rejected plaintiffs' contentions that the statute was not narrowly tailored because it covers small as well as large contributions and prevents candidates who are in no position to sell political favors from receiving contributions. Id. With regard to the first contention, the Court concluded that it was ''not in the position to 'second guess a legislative determination as to the need for prophylactic measures where corruption is the evil feared.'' ' Id. (quoting National Right to Work Comm., 459 U.S. at 210, 103 S.Ct. 552). With regard to the second, it found that the threat of making a contribution to a ''challenger can supply as powerful incentive as contributing to that legislator himself'' when trying to gain favorable treatment from a legislator. Id.
Although it refused to invalidate the ban on contributions by lobbyists during, the Court invalidated two key provisions. After recognizing that the definition of a political committee was overbroad in that it purposefully included issue advocacy within its parameters, and that the corporate ban had failed to make an exception for political corporations that pose no threat to the integrity of the political process, it declared those provisions unconstitutional and enjoined their enforcement. By so holding, the Fourth Circuit, protected the rights of American Citizens to participate freely in political discourse.
6. The Alaska Supreme Court's failure to protect constitutional rights of free speech and association
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On April 16, 1999, the Alaska Supreme Court handed down its opinion on a challenge to Alaska's campaign financing statutes brought by the Alaska Civil Liberties Union (''AkCLU'') in response to the legislature's comprehensive ''reform'' of Alaska's campaign financing laws (the ''Act'') which became effective January 1, 1997. Alaska v. Alaska Civil Liberties Union, 1999 WL 219443 *1 (April 16, 1999) (''AkCLU''). The AkCLU
complained that the Act violated both the First Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, and article I, section 5 of the Alaska Constitution. It sought declaratory and injunctive relief specifically challenging the validity of the Act's provisions containing (1) limits on campaign contributions; (2) bans on certain types of campaign contributions; (3) restrictions on the timing of contributions; (4) restrictions, which the AkCLU characterized as expenditure limitations, on campaign funds carry-forwards and inter-candidate contributions; and (5) bans on independent expenditures by certain organizations. [Id. at *2.]
The Alaska Supreme Court stated
[t]he Buckley Court set out three potential outer limits on contribution restrictions. First, it noted that ''[g]iven the important role of contributions in financing political campaigns, contribution restrictions could have a severe impact on political dialogue if the limitations prevented candidates and political committees from amassing the resources necessary for effective advocacy.'' Restrictions preventing ''effective advocacy'' would directly impact speech, and therefore would be invalid. Second, the Court warned that at some level contribution limits would become so low that ''distinctions in degree'' between limits would become ''differences in kind.'' Third, it approved the limits intended to prevent corruption through ''large'' contributions, but warned that a statute barring contributions that were not ''large'' would be presumptively overbroad and thus invalid. [Id. at *6.]
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The Alaska Supreme Court also examined several cases after Buckley and summarized the law of free speech and association in the campaign finance context as
These cases leave us with a jurisprudence based on the threat of corruption and the appearance of corruption, and dependent on case-specific analysis. Speech relating to ballot initiatives (where quid pro quo corruption is not a significant danger) is entirely protected. In campaigns for political office, individual speech is protected to the extent it is independent and poses no danger of quid pro qo arrangements; contributions and coordinated expenditures are subject to regulation. Corporations that meet special nonbusiness criteria (as per MCFL) pose no danger of corruption, and have rights similar to those of individuals. But corporations that doe not meet those criteria are—given the threat of corruption their state-created advantages pose—completely subject to regulation. [Id. at *7.]
After discussing Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 110 S.Ct. 1391, 108 L.Ed.2d 652 (1990), wherein the United States Supreme Court upheld an independent expenditure ban as applied to a nonprofit corporation because the Michigan statute permitted corporations to make expenditures through separate segregated funds, the court held that Austin supported the ban on independent expenditures by business corporations and unions. AkCLU, at *9–11. However, it determined that the statute was unconstitutional as written because it did not provide an exception for MCFL type organizations. Id. at *12. Still, the Alaska Supreme Court ''decline[d] to strike down the statute on the theory the expenditure ban is overbroad as written,'' and chose ''instead to read the statute narrowly'' to exempt MCFL type organizations. Id. It then interpreted the statute to exempt those entities that (1) ''cannot participate in business activities,'' (2) ''have no shareholders who have a claim on corporate earnings,'' and (3) ''are independent from the influence of business corporations.'' Id.
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Next, the Alaska Supreme Court turned to the ban on contributions to candidates and groups by corporations, companies, partnerships, firms, associations, organizations, business trusts or sureties, and labor unions. Although the court recognized that ''[t]his outright ban on contributions directly implicates both political speech rights and associational rights of would-be contributors,'' it concluded that the same ''considerations which justify the ban on independent expenditures by 'non-group' entities also justify this contribution ban.'' Id. at *14. As before, it also created an MCFL exception and stated ''[w]e believe the permissible scope of these bans is best determined in the context of fact- and class-specific litigation, especially given the lack of briefing on the issue here,'' and declined ''to list which types of entities the statutes may permissibly affect.'' Id.
The Alaska Supreme Court next addressed the restrictions on contributions by nonresidents. Specifically, the Alaska statutes permit nonresident individuals to make candidate contributions subject to the same sliding scale as residents and to groups or political parties subject to a 10% aggregate limit on nonresident contributions. ''Nonresident groups may make no contributions at all. Nonresident individuals and groups may make unlimited independent expenditures.'' Id. at *15. The Court accepted the state's compelling interested in limiting the ''potential for distortion'' of Alaska's political process by nonresidents and declined to find that the limits were ''unduly low.'' Id. at *17. Further, it did ''not read the record to indicate that these limits in fact impinge on nonresidents' speech or associational rights'' at all. Id.
The Alaska Supreme Court also upheld a ban on registered lobbyists' out-of-district contributions after finding that contributions by lobbyists are ''particularly susceptible to the perception that they are buying access when they make contributions.'' Id. at 18. It also held that the ban was narrowly tailored to the state's compelling interest in preventing the perception of corruption. Id.
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Turning to the Act's contribution limits the Court upheld each of the Act's limitations because of the absence of ''evidence that diminished contribution limits have impaired effective advocacy or are qualitatively different in kind'' from those in Buckley. Id. at *24–25. It also upheld post-election contribution limits because they ''clearly address corruption and its appearance,'' while invalidating the Act's pre-election contribution limits because it agreed with the Massachusetts Supreme Judicial Court's statement that
[L]egislation that has the effect of prohibiting a contributor from expressing support and affiliation with a candidate for a lengthy period constitutes a significant interference with the right of association. A contributor might have compelling reasons for desiring to express that support at a particular time other than the year of an election. [Id. at *28 (quoting Opinion of the Justices to the House of Representatives, 418 Mass. 1201, 637 N.E.2d 213, 218 (Mass. 1994)).]
Finally, the court upheld both the restrictions on the ''amount of unused contributions a candidate may carry forward to the next campaign'' and the ban on inter-candidate contributions from campaign funds. AkCLU, at *30–31. Specifically, the Court decided that with regard to the carry forward provisions, the State's compelling interest in preventing ''candidates who are unopposed, or opposed by weak candidates, from taking contributions in one campaign to avoid limits in the next one,'' was narrowly tailored to achieve that end. Id. at *30. With regard to the ban on inter-candidate contributions from campaign funds, the Court determined that the state's compelling interest in preventing: ''(1) use of donations contrary to the purpose of the original contributor; (2) corrupt use of campaign funds for power-brokering; and (3) evasion of contribution limits by funneling,'' was narrowly tailored because it did not prevent inter-candidate contributions from candidate's personal funds. Id. at *31.
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Thus, unlike the above cases and in spite of Buckley, the Alaska Supreme Court upheld campaign finance laws that are not narrowly tailored to the state's compelling interest in preventing corruption and the appearance of corruption. Specifically, it allowed the state to ban both contributions to candidates and independent expenditures by groups without a provision, like that in Austin, allowing such organizations to speak through alternative channels such as segregated funds. However, the time for appeal is not yet past, and the plaintiffs may very well continue their challenge by petitioning the United States Supreme Court.
B. Prong Two: The Coordination Theory
The second prong of the attack on issue advocacy is the claim that any coordinated expenditure which influences an election is subject to government regulation or prohibition even if it does not contain express advocacy. This ''coordination theory'' is discussed in this section. Then an example of the theory in action will reveal the crushing burden on the free expression and privacy of citizen groups that results from trespass across the constitutionally-mandated border between issue advocacy and express advocacy. First, however, it is important to note why the FEC is so intent on regulating issue advocacy that it claims is coordinated. The answer lies in the restrictions which attach under federal law.
1. The Statutory Burden on ''Contributions''
As discussed below, the goal of the coordination theory is to treat disbursements for political speech that would otherwise be constitutionally protected as ''contributions'' to a candidate so that they fall within statutory prohibitions and limitations. Federal law bars corporations from making political ''contributions.'' 2 U.S.C. §441b. Individuals may make political ''contributions,'' but are limited to only $1,000. Thus, making issue advocacy and independent expenditures into contributions by means of the coordination theory seriously restricts political speech in the form of disbursements that would otherwise be unrestricted.
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2. The Coordination Theory and Its Constitutional Flaws
FEC Regulations located at 11 C.F.R. §100.7, 100.22(see footnote 57) and 109.1 set out the circumstances under which a disbursement(see footnote 58) for political speech is determined to be ''coordinated'' with a candidate and thus a ''contribution,'' rather than an ''expenditure,'' allegedly subjecting the speech to heightened regulation by the FEC.(see footnote 59) If a disbursement is ''coordinated'' with a candidate, the disbursement is considered a ''contribution'' to the candidate, if it might influence an election, even if it did not contain express advocacy.
These rules should be seen in the context of efforts by the FEC to broaden the reach of its regulatory activity and, specifically, its persistent—albeit spectacularly unsuccessful—attempt to regulate and to prohibit issue advocacy. As summarized in the 1996 Special Report by the Fair Government Foundation entitled THE FEC'S EXPRESS WAR ON FREE SPEECH, the FEC has conducted a twenty-year campaign aimed at vitiating or substantially modifying the Supreme Court's holding in Buckley v. Valeo, 424 U.S. 1 (1976), that issue advocacy is constitutionally protected and is not subject to the Federal Election Campaign Act of 1971, as amended, 2 U.S.C. §431 et seq. (FECA), and that only speech which in express terms advocates the election or defeat of a clearly identified candidate may be regulated by the FEC. This campaign, which has included unsuccessful enforcement actions(see footnote 60) and invalidated regulatory efforts,(see footnote 61) has been wrecked on the shoals of the First Amendment.
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Rather than focus on issue advocacy as an ''expenditure'' under the FECA, the rules attempt to ensnare issue advocacy as a ''contribution.'' However, the protection of issue advocacy does not depend on FEC labeling; it is intrinsic in the First Amendment and in the FECA, as adopted by Congress and as interpreted by the Supreme Court.
a. Government may only regulate expenditures and contributions which are for express advocacy. Under the FECA, '' 'expenditure' and 'contribution' are defined in parallel provisions in terms of the use of money or other valuable assets '' 'for the purpose of . . . influencing' the nomination or election of candidates for federal office.'' Buckley, 424 U.S. at 77 (citing 2 U.S.C. §431(e) and (f)). Because of the ambiguity of this phrase and of the concern that it has the ''potential for encompassing both issue discussion and advocacy of a political result,'' the Court in Buckley gave it a limiting construction in both definitions ''to reach only funds used for communications that expressly advocate the election or defeat of a clearly identified candidate.'' Id. at 79–80.
Under the FECA, therefore, whether a disbursement for a communication will be deemed a ''contribution,'' rather than an ''expenditure,'' depends not on its content—because, in either event, it must contain ''express advocacy''—but upon whether it has been ''coordinated'' with a candidate. Id. at 46, 78. Thus, as Professor BeVier would explain, issue advocacy is not
speech that ''in express terms advocates[s] the election or defeat of a clearly identified candidate for federal office,'' which is the only kind of speech for which the Court has held that contributions may be constitutionally restricted. To regulate contributions for speech that is other than express advocacy of the election of particular candidates, the Court said, would create intractable vagueness problems and cause unacceptable chilling of protected, issue-oriented political speech. It would, in other words, thwart speech debating the merits of government policies and addressing the public issues that are at stake in an election—the very kind of speech that the First Amendment was written primarily to protect. [Lillian. R. BeVier, Campaign Finance ''Reform'' Proposals 16 (1997).]
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In Buckley, the Court was faced with a series of constitutional challenges to the 1974 amendments to the FECA. Broadly speaking, the Court upheld the limitations which the FECA placed on ''contributions'' while it struck down or narrowly construed the ''expenditure'' restrictions on First Amendment grounds.
The Court's resolutions of two issues which arose in Buckley are particularly relevant to the legitimacy of the proposed regulations. Specifically, the Court held that Congress may neither (1) place monetary restrictions on ''independent expenditures''(see footnote 62) nor (2) infringe ''issue advocacy.'' 424 U.S. at 51 and at 79–81. The intersection of these two constitutional rules largely defines the extent to which political speech may be regulated by government. That is, a disbursement for political speech is immune from regulation unless it falls outside of each of these protected categories. To be amenable to regulation, it must be (1) ''coordinated'' with a candidate (i.e., not ''independent''); and (2) it must constitute ''express advocacy'' of the election of or defeat of a clearly identified candidate.(see footnote 63) When either condition is missing, the disbursement is immune from regulation.
This dual requirement for regulation of campaign-related speech is a bulwark against government infringement of speech under the legal fiction that a given disbursement is a disguised ''contribution'' to a candidate. The rule that only 'coordinated express advocacy' may be deemed a contribution is deeply rooted in the First Amendment and its policy of zealously protecting political speech.
This was evident in the Buckley Court's consideration of §434(e) of the FECA, a provision which required persons making ''contributions or expenditures'' in excess of certain levels to report them. The Buckley Court found that the provision defining expenditures as ''the use of money or other valuable assets 'for the purpose of . . . influencing' the nomination or election of candidates for federal office'' was unconstitutionally vague. Therefore, to obviate the danger that ''fear of incurring [criminal] sanctions may deter those who seek to exercise protected First Amendment speech,'' the Court applied the ''express advocacy'' test to the phrase ''for the purpose of . . . influencing'' in the definitions for both ''expenditure'' and ''contribution.'' For, as the Court noted, that phrase ''shares the same potential for encompassing both issue discussion and advocacy of a political result [as did the phrase 'relative to' in §608(e)(1)].'' 424 U.S. at 79 (emphasis added). However, when limited to ''express advocacy,'' §434 (e) ''does not reach all partisan discussion for it only requires disclosure of those expenditures that expressly advocate a particular election result.'' Id. at 80 (emphasis added).
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Significantly, in both portions of the opinion in which it applied the ''express advocacy'' test, the Buckley Court noted the importance of precision and specificity where the regulation of speech is concerned. ''The test is whether the language of [the statute or regulation] affords 'the precision of regulation [that] must be the touchstone in an area so closely touching our most precious freedoms.'' ' Id. at 41. Or as the Court stated later in the opinion, ''[w]here First Amendment rights are involved, an even 'greater degree of specificity' is required.'' Id. at 77. Thus, it is evident that when it fashioned its definition of ''express advocacy,'' the Court believed itself to be construing the provisions of the FECA precisely, i.e., with the degree of specificity commanded by the First Amendment.
In sum, under the Buckley definition of ''express advocacy,'' disbursements for political purposes are accorded full First Amendment protection as long as they remain outside the narrowly-circumscribed category of ''express advocacy.'' As the Supreme Court summarized, ''[s]o long as persons and groups eschew expenditures that in express terms advocate the election of a clearly identified candidate, they are free to spend as much as they want to promote the candidate and his views.'' Id. at 45.
Thus, it is clear that the express advocacy test is a highly speech-protective judicial instrument, which is applicable even if the disbursement is ''coordinated.'' Considering the vast scope of potential political speech, the ''express advocacy'' test allows legislative encroachment on a very tiny portion, only enough, in fact, to further Congress' compelling interest in avoiding the reality and appearance of corruption in the political process. In doing so, the test completely protects issue advocacy.
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Government may not restrict issue advocacy whatsoever. Therefore, to the extent that the FEC's regulations and coordination theory infringe on issue advocacy, they must be rejected.
b. Government may not regulate ''independent expenditures.'' Independent expenditures, discussed in section II(a) supra, are not only the target of regulation by State legislators, State agencies, and State courts but also the FEC.
In Colorado Republican Federal Campaign Committee v. FEC, 116 S. Ct. 2309 (1996),(see footnote 64) the Supreme Court considered the validity of a provision of the Federal Election Campaign Act which limited the amount of money that a political party could spend in support of a candidate. 2 U.S.C. §441a. Under consideration were certain expenditures made by the Colorado Republican Party for media advertisements in opposition to the likely Democratic Senatorial candidate.
A central issue was whether the expenditure in that case (which was for an ''advertising campaign'') was in fact ''independent'' and thus, immune from limitation under the principles announced in Buckley, or whether it was ''coordinated'' and, thus constitutionally susceptible to limitation as a ''contribution.''(see footnote 65) Writing for the plurality, Justice Breyer held, as a matter of constitutional law, that the expenditure for the Republican Party's advertising campaign was ''independent.'' Id. at 2315.
In arriving at its decision regarding the ''independence'' of the expenditure, the Supreme Court plurality rejected the following ''general'' factors: (1) that it was the party's practice to coordinate ''campaign strategy'' with the candidate; (2) that the Republican Chairman was ''as involved as he could be'' with the individuals seeking the Republican nomination; and (3) that the Republican Chairman made available to the candidates ''all of the assets of the party.'' Id.
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The plurality noted that ''[t]hese latter statements . . . are general descriptions of party practice. They do not refer to the advertising campaign at issue here or to its preparation.'' Id. (emphasis added). Thus, central to the analysis of the ''independence'' of an expenditure for constitutional purposes is that the activity which serves as the basis for the government's claim of ''coordination'' must relate to the expenditure itself. Generalized allegations that there was ''involvement'' between the group making the expenditure and the ''campaign'' are simply insufficient to turn an independent expenditure into one which is ''coordinated.'' Colorado Republican thus stands for the proposition that, in order for expenditures to be considered ''coordinated'' as opposed to independent, specific expenditures must be actually coordinated with a candidate. The ''constitutionally significant fact,'' the Court concluded, ''is the lack of coordination between the candidate and the source of the expenditure.'' Id. at 2317.
The Colorado Republican Court rejected the FEC's arguments to the effect that the expenditure was ''coordinated'' despite the lack of ''actual coordination.'' Id. at 2317. As the Court explained, merely re-labeling a constitutionally protected independent expenditure as a ''contribution'' is not constitutionally significant: ''[a]n agency' simply calling an independent expenditure a 'Coordinated expenditure' cannot (for constitutional purposes) make it one.'' Id. at 2319.
Colorado Republican followed the analytical framework of Buckley precisely. The Court explained that there is a ''fundamental constitutional difference between money spent to advertise one's views independently of the candidate's campaign and money contributed to the candidate to be spent on his campaign.'' Id. at 2315. Thus, ''independent expression of a political party's views is 'core' First Amendment activity no less than is the independent expression of individuals, candidates, or other political committees.'' Id. at 2316. The Court therefore held that, as ''core'' political speech, independent expenditures by political parties may not be limited in the absence of a compelling governmental interest, specifically the threat of quid pro quo corruption. The Court held, however, that the threat of such corruption was alleviated by the ''absence of prearrangement and coordination'' of the expenditure with the candidate. Id. (citation omitted).
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First in Buckley, later in FEC v. NCPAC, 470 U.S. 480 (1985), and most recently in Colorado Republican, the Supreme Court has made it abundantly clear that ''independent expenditures'' (no matter by whom) are to be afforded the utmost protection under the First Amendment. This rule means that such expenditures may not be subject to any monetary ceiling unless there is a sufficiently compelling interest, i.e., money will be expended in return for political favors. However, Colorado Republican makes clear that there is no potential for such corruption unless the expenditure at issue is actually and specifically coordinated with a candidate. Therefore, under the Supreme Court's consistent jurisprudence of ''independent expenditures,'' disbursements for express advocacy communications absent actual coordination with a candidate concerning the specific expenditure are unconstitutional violations of the First Amendment.(see footnote 66)
3. Regulation of ''Coordinated Expenditures'' Between Political Parties and Their Candidates
Although the Colorado Republican Party had ''claimed that, in the special case of political parties, the First Amendment forbids congressional efforts to limit coordinated expenditures as well as independent expenditures,'' the Supreme Court declined to address the issue because it had not been fully addressed in the lower courts. Colorado Republican, at 2320–21. On remand, the District Court squarely addressed the question.
The Colorado Republican Party specifically argued that in the case of political parties ''independent expenditures are 'unnatural' because such expenditures 'create an artificial separation of the party and its candidate,'' ' and that ''[t]he need to be independent of a candidate and his or her campaign so as not to run afoul of the requirements for independent expenditures and fall within the regulations on coordinated expenditures dampens the ability to engage in the party's normal functions and imposes additional costs and burdens to promote the party message.'' FEC v. Colorado Republican Federal Campaign Committee, 1999 WL 86840 at *13 (D. Colo.) (February 18, 1999) (''Colorado Republican II''). Thus, it argues, limits on coordinated expenditures implicate core First Amendment rights because ''[t]he message of the party and the message of the candidate are unified, and the party's dollars cannot be characterized as simply speech by proxy.'' Id.
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The FEC countered that the ''powerful party hierarchy, made so because of its ability to grant or withhold funding for unlimited coordinated expenditures, has the ability to exact a quid pro quo from a candidate who needs assistance from the party during his or her campaign.'' Id. at *14. Specifically, the FEC identified two types of corruption.
First, the FEC suggest[ed] that contributors to the party committees—individuals and PACs—are so powerful that they could force the party committee to compel a candidate to take a particular position. Second, parties themselves have agendas which they wish to pursue and will support only those candidates who agree to follow that agenda. [Id.]
''The Party Expenditure Provision,'' as the Supreme Court labeled 2 U.S.C.A. §441a(d), limits contributions to candidates as follows:
(1) Notwithstanding any other provision of law with respect to limitations on expenditures or limitations on contributions, the national committee of a political party and a State committee of a political party, including any subordinate committee of a State committee, may make expenditures in connection with the general election campaign of candidates for Federal office, subject to the limitations contained in paragraphs (2) and (3) of this subsection.
* * * *
(3) The national committee of a political party, or a State committee of a political party, including any subordinate committee of a State committee, may not make any expenditure in connection with the general election campaign of a candidate for Federal office in a State who is affiliated with such party which exceeds——
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(A) in the case of a candidate for election to the office of Senator, or of Representative from a State which is entitled to only one Representative, the greater of—(i) 2 cents multiplied by the voting age of the population of the State (as certified under subsection (e) of this section); or (ii) $20,000; and
(B) in the case of a candidate for election to the office of Representative, Delegate, or Resident Commissioner in any other State, $10,000. [2 U.S.C.A. §441a(d).]
The District Court began its analysis by noting
The only permissible purpose for limitations on campaign expenditures is to prevent corruption or the appearance thereof. ''Corruption is a subversion of the political process. Elected officials are influenced to act contrary to their obligations of office by the prospect of financial gain to themselves or infusions of money into their campaigns. The hallmark of corruption is the financial quid pro quo: dollars for political favors.'' NCPAC, 470 U.S. at 497, 105 S.Ct. at 1468. The FEC's attempt to broaden the definition of corruption to include mere access is unsupported by precedent. [Colorado Republican II, at *12.]
Next, the District Court stated
''The First Amendment 'has its fullest and most urgent application to speech uttered during a campaign for political office.'' ' Political parties, and the central activities in which they engage, are a paradigm of the right to freedom of association as guaranteed by the First Amendment. FECA specifically defines a political party as ''an association, committee, or organization which nominates a candidate for election to any Federal office whose name appears on the election ballot as the candidate of such association, committee, or organization.'' FECA makes special provisions for political parties, 2 U.S.C.A. §441a(d), and establishes a special position for them in the statutory framework out of recognition that 'a vigorous party system [is] vital to American politics.'' A political party is an entity which (1) allows the individual voter to associate with others who share similar political beliefs, (2) identifies people who constitute the party, and (3) ''select[s] a 'standard bearer who best represents the party's ideologies and preferences.'' ' [Id.]
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The District Court then properly placed the burden on the FEC to ''establish that limiting party coordinated expenditures is necessary to avoid corruption or the appearance thereof.'' Id.
The FEC failed to provide any evidence of either type of the corruption it claimed resulted from contributions from political parties to their candidates. With regard to the second type of corruption, the Court determined that it simply was ''not corruption.'' Id. at *15. Specifically, the Court found that because of the limits placed on individual contributions to political parties, that it could not ''conclude that party contributions are akin to large individual contribution.'' Id. Rather, ''[t]he relationship between a party and a Member of Congress who represents that party is wholly different from the relationship between a private individual or corporation and a Member of Congress.'' Id. ''Parties exist because of their success in electing representatives of their philosophy to legislative bodies.'' Id.
Thus, after Colorado Republican II, political parties may make unlimited coordinated expenditures with their own candidates.
CONCLUSION
The trampling of First Amendment freedoms in Iowa, Kansas, Michigan, Arkansas, North Carolina, Alaska, and FEC regulations is typical of what will happen if so-called campaign finance reform regulating issue advocacy is ever enacted.
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The Nation stands at a crossroads. Either it will claim the heritage of free expression in the political arena bequeathed to us by the Founders, or it will relinquish that hard-won liberty in favor of a the long-rejected regime of political control of political speech. The First Amendment was enacted precisely to counter governmental controls on political speech. It is the first and foremost campaign reform. The First Amendment is not a loophole to be closed by misguided politicians who have forgotten the lessons of history.
Mr. CANADY. I want to thank all the members of the panel for your very instructive testimony, and I would like to begin by picking up on something that Mr. Bonifaz mentioned about the dominance of the wealthy few in the process.
I think that that sort of concern actually highlights the need to make certain that we don't impose rules that will make it impossible for people who are not wealthy to join together to express their viewpoint, and I think the kind of people that Mr. Bopp represents, for the most part, aren't really wealthy people. There may be some wealthy people involved in the movement he represents, but it has been my experience that most of those folks are not people who give large contributions to political campaigns, but they want to join together to express a viewpoint.
And I am concerned that some of the proposals here will actually make it more difficult for people, individuals like that, to play a role in the political system in expressing a viewpoint and in criticizing Members of Congress or in conveying other messages they wish to convey, and I just make that as a general observation which I think bears consideration.
Let me read something from Buckley, and somebody may have already made reference to this, but in the Buckley decision, the Court said this, ''So long as persons and groups eschew expenditures that in express terms advocate the election or defeat of a clearly identified candidate, they are free to spend as much as they want to promote the candidate and his views.''
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As I read that and as I listen to your testimony, Mr. Moramarco, I have difficulty squaring what the court said there with your general approach, and I would just be interested in what you have to say about that particular statement of the Supreme Court in Buckley.
And there may be others who want to elaborate, but——
Mr. MORAMARCO. Let me begin with that. I think the thrust of my testimony was that the Supreme Court was, in Buckley, construing one very badly drafted statute, and it didn't have the luxury that Congress has of rewriting it any way it wants.
It had to—I mean, it is not supposed to rewrite the section at all, in fact. So it construed it in a simple and easy way that didn't involve legislating. The court couldn't have adopted an eight-factor test the way Congress can.
What I am suggesting to you is that if you want to remedy F.E.C.A.'s drafting problems you could adopt an eight-factor test. You can adopt a ten-factor test. There are numerous ways that you could have written FECA better ab initio that weren't open to the court.
And if we want to talk about cases that recognize that Buckley wasn't the be all and end all, there is a case before the Wisconsin Supreme Court now that hasn't been decided, but the lower court had held that Wisconsin was not bound by the magic words test, that it at least had the power to write something more broadly. The court found that in that case Wisconsin didn't do a good enough job of letting people know ahead of time, but that Buckley didn't foreclose Congress from itself correcting the error which caused the Buckley court to adapt the magic words test.
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Mr. CANADY. Would anybody like to respond to that?
Well, several, and Mr. Pilon.
Mr. PILON. Well, just because the Court was working with a badly drafted statute does not imply that the court said, go back and draft it better and we will uphold it no matter how restrictive it is of free speech; and so I don't think we are warranted to draw anything more from the language of the court than the language itself entitles us to draw.
Mr. CANADY. Mr. Bopp.
Mr. BOPP. Mr. Chairman, I heard your question to address Mr. Moramarco's statement that—and perhaps Professor Briffault's statement—that the U.S. Supreme Court was somehow or another ignorant of the fact that issue advocacy may influence elections and that this somehow——
Mr. CANADY. It seems they contemplated that it could have that intention, and it says that they are free to spend as much as they want to promote the candidate and his views. Obviously, promoting a candidate could influence an election.
Mr. BOPP. Yes. And in fact, there is another passage in Buckley, which I would read, which makes the precise point that the court understood that issue advocacy could influence an election. What the Court said was, quote, ''Public discussion of public issues, which are also campaign issues, readily and often unavoidably draws in candidates and their positions, their voting records and their official conduct. Discussion of those issues, as well as more positive efforts to influence public opinion about them, can naturally and inexorably exert some influence on voting at elections.''
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In other words, they recognized full well that when National Right to Life or other organizations inform the general public that a President of the United States vetoed a particular bill, when citizens are informed about how Members of Congress voted on that particular bill, that that could influence an election; but the Court said that the value, though, in the ability of citizens to engage in the discussion of public affairs was so much more important than the fact that it might influence an election. We have to have that bright line.
Mr. CANADY. My time has expired. I intend to do a second round of questions, so we will have an opportunity to revisit this.
I now recognize the gentleman from Arkansas.
Mr. HUTCHINSON. Thank you, Mr. Chairman. This is a critically important issue. I do support campaign finance reform, but I am concerned about the first amendment and that we pass a reform bill that does not infringe upon the rights to engage in the political process freely.
I noted Mr. Pilon's encouragement—to adopt the Doolittle approach to campaign finance reform, which is really no reform, but is going back to the good old days of if a political action committee wanted to give a million dollars to a candidate, they could do so, or if a wealthy individual wanted to give a million dollars to a candidate, they could do so, or more if they wanted to so long as it was disclosed; and I just don't think that is the right direction to go.
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I realize that the public might know about it, but I really don't think that is the right direction to go. That is just my personal opinion.
Mr. PILON. Could I respond to that?
Mr. HUTCHINSON. No. I had some questions I would like to point out here.
I want to talk about soft money, which is the biggest concern that I have. I think that this should be addressed. You discuss soft money on page 8 of your testimony, and then you cite—the only case that I see that is cited in reference to soft money is the Colorado case.
In the Colorado case you talk about limitations on the parties' spending and sort of tie that to contribution limits by saying that four justices in the recent Colorado case went so far as to say that given the practical identity of interest between party and candidate during an election, the corruption-prevention rationale for sustaining limitations on contributions did not support any limitations on party spending.
The Colorado case dealt with party spending, did it not?
Mr. PILON. Yes.
Mr. HUTCHINSON. It was not a soft money case, was it? And the court did not address their concern about contribution limits to the parties in terms of soft money.
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Mr. PILON. Well, if memory serves me correctly, it was a soft money case insofar as it involved contributions to a party as opposed to a candidate.
Mr. HUTCHINSON. But it was a spending case.
Mr. PILON. And expenditure of the party and whether these expenditures were coordinated with the candidate or not.
Is that not correct, James?
Mr. HUTCHINSON. It is a spending case, is it not?
Mr. BONIFAZ. It is a hard money case.
Mr. HUTCHINSON. It is hard money spending case and concern about whether you could properly limit the expenditures of a party. I don't believe that is a case that would raise a question as to whether soft money contribution limits are constitutionally suspect.
Does anybody disagree with what I just said?
Mr. BOPP. Well, the follow-up case, though, certainly does.
Mr. HUTCHINSON. Well, I am talking about the Colorado case.
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Mr. BOPP. I am talking about the district court decision just handed down a couple of weeks ago in the Colorado case on remand, because there the court held that coordinated expenditure limits, that is, limits in terms of contributions from a party to a candidate, were unconstitutional on the ground that there was no way that a party could or would corrupt its own candidate.
Well, if that rationale is true, it would also be true that a contribution to a party is not corrupting of anyone because the only person they can give it to is a candidate, and if you can't corrupt a candidate, then it makes no sense to limit parties.
Mr. PILON. And that is the only rationale the court has upheld, corruption prevention.
Mr. HUTCHINSON. All right. Let me first come back here. I have a limited amount of time.
First of all, I would question whether you can use the Colorado case, which is a spending case, to support an argument that there is a constitutional question as to whether you can limit soft money. And in reference to the corruption analysis—and I do want to spend a little bit of time on this and get Ms. Murphy's comments on this. You are saying that there is not any connection between a candidate or an office holder and the raising of soft money.
I mean, that is what I think I heard, because you are buffered by the party. But would it not have an impact if candidates and Members of Congress themselves were out raising the soft money with personal telephone calls to corporations, wealthy individuals, saying we need you to send $50,000 to the party? Is that not a relevant factor that ties a candidate or a Member of Congress in to the soft money scheme?
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Mr. PILON. It doesn't bother me. Why does it bother you?
Mr. HUTCHINSON. I am not sure I said it bothered me. I asked a question as to whether that would change your analysis.
Ms. Murphy?
Ms. MURPHY. I don't think so because, again, I think parties——
Mr. CANADY. The gentleman's time has expired. The gentleman has 2 additional minutes.
Mr. HUTCHINSON. Thank you.
Ms. MURPHY. Parties are hybrids of issue advocacy organizations and organizations that exist to get their candidates elected and reelected. A Member of Congress could personally call a large corporation or a labor union on behalf of any issue advocacy organization and say, would you please give money to the National Right to Life Committee or the ACLU; and so the fact that a Member of Congress is involved in the solicitation doesn't necessarily make that solicitation linked to hard money.
Am I answering the question?
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Mr. HUTCHINSON. You absolutely are answering it, but let me follow up.
You are saying that is not enough?
Ms. MURPHY. That is right.
Mr. HUTCHINSON. That is not enough in the Supreme Court's analysis.
In the Buckley case, was there evidence of corruption and linkage between contributions and candidates that justified the limitation of $1,000 and their upholding that? And I am trying to get at, to what extent do we have to show a justification for limitations on soft money under the Buckley analysis?
Ms. MURPHY. Well, I don't think it was incumbent upon the court in Buckley to provide all of the legislative history. That was what the Congress provided as part of a hearing record leading up to the Federal Election Campaign Act.
Mr. HUTCHINSON. But what was the legislative history that allowed the Buckley court to say, there is a compelling State interest in a limitation of the contribution of $1,000?
Ms. MURPHY. Well, I think the whole Federal Election Campaign Act Amendments were really having to do with what happened during the Watergate era. That was the backdrop of hush money, slush funds, huge—I forget the guy's name who left to live on a island, but gave a million dollars to Richard Nixon, I believe.
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Mr. PILON. Bebe Rabozo.
Ms. MURPHY. Bebe Rabozo, thank you. And these were the kinds of things that happened that led up to the perception of the public and the Congress at that time that there had to be some disclosure and some accountability. It wasn't necessarily proven in the course of those hearings that there was actual corruption, but there was certainly the appearance of that in the Congress.
Mr. HUTCHINSON. I am trying to determine whether you have to show people Members of Congress are going to jail and being convicted because they had a quid pro quo bribe, in essence, or whether it is sufficient to show great public concern about enormous money flowing in that has the appearance of a corrupting influence.
And I think we can lay that kind of foundation, and I thank the Chairman for being so gracious with the time.
Mr. CANADY. Thank you.
The gentleman from North Carolina, Mr. Watt, is recognized.
Mr. WATT. Thank you, Mr. Chairman. Let me start by apologizing to the chairman and the members of the committee and the witnesses for not being able to be here. Unfortunately, the bankruptcy bill is on the floor, and I had two amendments that I was actively involved in, and I did one and came back, and then they called the second one almost as soon as I got back, and I didn't have any choice.
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I really looked forward to being here for this hearing because I need a substantial amount of information and education on this issue, and I looked forward to these witnesses being able to help me with that information and education, because I am very ambivalent about this whole issue and probably not very well-informed about it either.
I kind of held my nose and voted for Shays-Meehan last year despite some very strong concerns I had about some of the constitutional considerations, and I am still not sure where I stand on what they have proposed. Let me personalize this a little bit and see if I can—maybe that will help me to understand, and you to understand my dilemma.
I am a very, very strong advocate of first amendment rights. Probably the ACLU will—Ms. Murphy will confirm that.
Ms. MURPHY. I will vouch for you.
Mr. WATT. Except she was a very disappointed——
Ms. MURPHY. On this issue.
Mr. WATT [continuing]. About where I was on this issue, and I might have been disappointed myself, because I believe in people having the right to say what they want to say, whether I agree with them or not.
I come out of a law firm that actually provided representation for the Ku Klux Klan and their right to march and demonstrate. That is how strongly we believed about it. We didn't agree with a thing they were saying, but we said we would fight to the end for their right to say it, and I am a vigorous supporter of that.
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But let me put a little personal touch on it. I had an election last year, and none of these issue groups paid for the last 4, 6 years, certainly for the last 2 years, had paid any attention to what I was doing on issues. They might have been concerned about them, but they weren't running any ads.
But all of a sudden, 60 days before the election, there was a barrage of, ''issue ads,'' $150,000 to $200,000 worth of issue ads that—they say, oh, that has got nothing to do with the outcome of the election, we are not trying to influence who wins this election. We sat there for 22 months or 21 months and didn't say anything, and it is just a coincidental that we are running these issue ads now in the middle of your campaign. We don't want to influence the outcome of the election. We are just trying to inform the electorate about where you were on this issue.
That puts a slightly different perspective on it. Or maybe it shouldn't; maybe it shouldn't make any difference to me if it is a free speech issue when people exercise their right to speak freely. Maybe I shouldn't be concerned about it.
But that is the problem, and I guess what I am asking is, is there any kind of—can I get my 2 minutes now, and I will ask questions?
Mr. CANADY. You get 3 minutes. The gentleman will have 3.
Mr. WATT. Is there some reasonable way to constrain those things in the context of an election, or should I just resign myself that that is a product of free speech and democracy, and quit fighting about it, and go out and solicit $300,000 to counteract those ads in some way? Maybe I could do that.
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So that is what I want to hear from you-all about, if you can help me. Let's start with Mister, is it Bopp?
Mr. BOPP. Bopp.
Mr. WATT. Bopp.
Mr. BOPP. Thank you very much.
Yeah, I do think there is something that could be done which would be constitutional and that is to raise contribution limits, because I think that issue advocacy and independent expenditures that are being done by third parties to influence an election is an unintended, but could have be expected consequence of contribution limits, because the problem is that they cannot participate directly.
In other words, an interest group, an organization or, for instance, group or a group of trial lawyers, the most that they can do is give a contribution directly. If their interest is at stake in a way that is worth more than that—let's say, it is worth $50,000 to them; well, then they are going to try to find some other avenue legally to participate, to influence the election.
Mr. WATT. But if you raise the contribution limit they are going to contribute that and they are going to do the issue ads, so I don't think that is going to stop this.
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Mr. BOPP. Independent expenditures and issue advocacy were relatively rare when the contribution limits were first imposed, but as Mr. Remcho pointed out, those contribution limits were very large at the time. Now they are really relatively small, and at the same time that you have seen contribution limits become smaller in real dollars and in impact, you have seen the rise of independent expenditures and issue advocacy; and that is because the donor has an interest at stake and is willing to spend a certain amount of money. If they can't give it to the candidate, they are going to do it some other way.
Mr. WATT. Ms. Murphy, you were going to——
Ms. MURPHY. I agree with——
Mr. WATT. You had your hand way up. You have been trying to give your opinion on this for 3 years now.
Ms. MURPHY. Well, I am not going to stop today.
I agree with Mr. Bopp that I think a function of the growth of issue advocacy is the restrictions that have been kept in place on hard-dollar contributions to both individual candidates and parties, but I also think that there isn't a lot that you could do constitutionally to constrain issue groups from speaking close to elections.
Newspapers publish their editorials a week before the election. You don't know what they are going to say, what they are going to drag out, and we wouldn't think of telling them they couldn't speak. Issue groups speak sixty, thirty, a week before the election because that is when voters are paying attention. Why would they run an issue ad——
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Mr. WATT. You really think that is why they ran those ads then?
Ms. MURPHY. Well, I think that—I think one thing, that I wouldn't want the FEC to investigate what their real intent was, and that is where the harm would be.
Who would you give the authority to investigate whether or not they were intending to have a—to just defeat Mel Watt any way possible, or were they really passionate about the issues?
I hope that the ACLU gets more and more into paid advertising as we get larger, and I could see someone inferring from what we do on constitutional amendments or crime bills or abortion rights or any number of issues that our real intent was to elect this particular person in that race, when in fact our real intent would be to let the voters know where the Members of Congress come out on certain issues, and they can't always get that from reading the newspapers.
I would hate to have a structure where the FEC investigated ''true'' issue advocacy from ''sham'' issue advocacy, and I would much rather live with this situation and work to pass public financing and, at a minimum, increase contribution limits, restore the tax credit for political contributions and see if that won't ease some of the pressures that Members of Congress are honestly feeling.
Mr. WATT. I want to hear the other side of this, but I won't ask another question on the second round, and I will give everybody—I won't even ask another question. I just want to hear the opposite—the other side of it, so I hear the arguments as well. We will—I will get back.
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Mr. CANADY. We will come right back.
Mr. WATT. We will come back to it.
Mr. CANADY. We will come back for a second round, but I will recognize the gentleman from Georgia now.
Mr. BARR. I thank the Chairman and also thank him for what has been a very, very interesting hearing today. I am sure it is not the last on this key issue, and as expected, we have a wide variety of views reflecting, I suppose, also the wide variety of views on the part of many Members of Congress.
My view of why we are here to discuss campaign financing is to get back to the proper balance in protecting liberties that we believe are essential, fundamental liberties in our society; and in that respect, discussing campaign financing laws or Federal limits on it, which are Federal laws. My view is, we ought to approach it the same as in other areas where we are talking about Federal restrictions, and that is, to impose the least restrictions absolutely necessary to secure those liberties.
We are talking here about very fundamental liberties; therefore, I think we ought to resist vehemently the urge to jump in with more and more restrictions and look, more constructively at current laws, whether they are adequate to address the abuses that we have seen in the past. If so, we ought to look to whether or not they are being adequately enforced. Because, my view—I suppose also as a former prosecutor—is that there is nothing that undermines respect for the rule of law and compliance with our laws than laws that are not enforced or which are enforced differently for one level of person as opposed to another.
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I think these issues have been very starkly, and that analysis has been very appropriately, borne out by the recent campaign finance scandals involving—not exclusively, I understand, but especially the DNC and the Clinton-Gore reelection campaign in the 1995-96 campaign cycle. There we saw, I think by any stretch, a massive effort to ignore and circumvent existing laws with regard to foreign money coming in and violations of even existing FEC restrictions.
When I look at all this, I wonder why we are not focusing a little bit more attention on existing laws. Even if one goes back to Watergate, which has been mentioned a couple of times here, laws were in existence at that time that would give Federal prosecutors and did, in fact, provide the basis for Federal prosecutions where votes were being bought. The Federal statues on fraud were existent back then.
The Hobbs Act was in existence back then. Other Federal statutes that can be used by aggressive and imaginative prosecutors have been around a very long time. With, the exception back in the late 1980's of the addition to the fraud statutes to cover the intangible right to honest and faithful delivery of services by Federal officials, expressly included because of some cases that were thrown out, the laws have remained pretty much intact.
In my view, if you have a Department of Justice, if you have the United States Attorneys, if you have State prosecutors that are interested in protecting the integrity of the public decision-making process to ensure that votes are not, in fact, bought and are not rendered—official acts are not rendered for improper purposes, usually involving the payment of moneys or other forms of remuneration—if we have prosecutors that aggressively pursue those, that is indeed the very best and, I think, most appropriate check that we have on problems in our electoral and public service arena.
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So I really would hope that to some extent we get back to where I think the debate ought to be, not on yet more levels of restrictions. And, certainly, with all due respect to Ms. Murphy and I think Mr. Bonifaz, public financing of campaigns is about 180 degrees different from where our Founding Fathers envisioned us going, and in terms of public participation in the electoral process.
I would really like to see us focus more on better enforcement of existing laws. If there are some particular gaps in those laws to protect against, for example, foreign money coming in, the undue buying of influence, if the link the prosecutors have to prove between the provision of money and the rendering of official acts, then let's look at that and see if there are indeed gaps so we can strengthen those.
Is there anybody that disagrees with the proposition that the strongest deterrent that we can have to people violating the integrity of our electoral process, the decision-making process, and the rendering of public services is consistent enforcement of existing criminal laws against improper influence?
Mr. Pilon, would you disagree with that?
Mr. CANADY. The gentleman's time has expired. The gentleman will have 3 additional minutes.
Mr. BARR. Thank you.
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Mr. PILON. To a certain extent, I would, because part of the problem was raised before you got here, Mr. Barr, and that was by Commissioner Mason, about the great confusion that exists in this law today with respect to complexity. Right now, there is the question of drafting regulations for Internet, campaign contributions, which is a page 1 story in this week's Legal Times. It would be one thing if this law were clear and precise.
Mr. BARR. That is a very good point. I don't disagree with you. I think that is a very good point, that one way you can do a better job of ensuring compliance, both of complying with the law as well as prosecuting violations of it, is to go back and make your laws clearer.
Mr. PILON. Well, if that were possible in this area. I have suggested—again, before you got here, I think—the aptly named Doolittle bill, which Mr. Hutchinson took exception to because he thought that no one should be able to give a million dollars to a candidate.
I would remind the members of this committee that Eugene McCarthy has repeatedly said that under current campaign finance regulations he never would have been able to challenge President Johnson, because it was only because Stewart Mott and a few other wealthy people came forward with large contributions in a short span of time that he was able to mount that challenge. And it is a most unfortunate situation whereby our current campaign, finance regulations can actually change policy, and that is one example of how policy might be changed, if a candidate couln't come forward to challenge a policy because he wasen't allowed to raise the money necessary to do so.
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But, that is only one aspect of the problem. Another is that when you have to spend all your time getting small contributions on the what is euphemistically called the ''rubber chicken circuit,'' you find yourself taken away from the public's business——
Mr. BONIFAZ. Congressman.
Mr. PILON [continuing]. Having to operate under a system of this kind.
Mr. BARR. By the way, I did read all of your remarks, I appreciate them, and they are very good. I did read those.
Yes, Mr. Bonifaz.
Mr. BONIFAZ. May I just address your point that the Founding Fathers somehow would not agree with public financing. I am not sure where the basis of that statement comes from, because certainly the notion of political equality in this country is one that is true and dear to the idea of American democracy, and I don't see how we can have that promise of political equality upheld——
Mr. BARR. You are going to have the government make political equality and define political equality by saying nobody can participate.
Mr. BONIFAZ. Well, no, that is not what we are saying. Chairman Canady referred to the dominance of the wealthy few, which if he shares my view, I am not so sure how poor people and middle-income people band together. Yes, there are groups like the National Right to Life Committee out there on specific issues, but the reality, the facts are that in this system the top 1 percent of this population in terms of their wealth are controlling our elections. Those are the facts.
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There was a study done about those who contribute——
Mr. BARR. That is not a fact. That is an opinion because you can't cite scientific evidence of control. I mean, that is a very subjective term, ''control''.
Mr. BONIFAZ. Ninety-two percent of House winners first outraising or outspending their opponents before they win an election is a pretty good example, but furthermore——
Mr. BARR. Good example of what?
Mr. BONIFAZ. Good example that money is a determining factor in our elections.
Mr. BARR. That is different from people who contribute controlling a candidate or controlling somebody's vote.
Mr. BONIFAZ. They control the debate, Congressman Barr, and they control——
Mr. BARR. If they control how somebody votes, then that is a violation.
Mr. BONIFAZ. Not the votes, Congressman Barr, the debate and the viability. Candidates who are supported by poor people—imagine this: Let's say I am running against you; I have 1,000 supporters who only have $1. You have 10,000 supporters who—you have 10 supporters who have $1,000. You are going to outspend me 10 to 1. You have 10 supporters, I have 1,000. Is that democracy?
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Mr. BARR. You want to know how I get most of my input is from town hall meetings, and there is no admission charged for town hall meetings.
Mr. BONIFAZ. Well, Congressman Barr, you also raised a large sum of money from moneyed interests; I know that for a fact.
Mr. CANADY. The gentleman's time has expired.
We will now go to our second round, and I will recognize Mr. Watt.
Mr. WATT. I have already asked my question, and I will start with Mr.—maybe I should—maybe I should let him cool down a little bit.
Mr. BONIFAZ. I do want to, Congressman Watt. If I can, I wanted to address your point because I think that certainly issue advocacy is a concern. I don't mean to suggest it is not by focusing on public financing, and I also don't think it is fair to suggest—and I don't think anyone has, but I just want to make this clear—that no one on this panel is against the first amendment.
No one on this panel doesn't believe in the first amendment; we all do. It is just a matter of where we come down on this. But Ms. Murphy and I do——
Mr. WATT. How would you address my concern about the timing of issue ads? Is there some constitutional way to do it?
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Mr. BONIFAZ. I think there is a constitutional way to focus on those ads that are either with explicit directives or, by their essential nature, as the Supreme Court said in NCFL, engaged in trying to influence a Federal election; and those issue ads that are truly issue ads and are not engaged in that can go on.
But the problem that is happening here in this Congress and on this debate is that we focus so narrowly on issue ads that we miss the bigger problem, which is that ordinary citizens are locked out of this process. They don't have their exercise of first amendment rights and equal protection rights guaranteed under this process, and that is something this Congress ought to deal with.
And there is an alternative solution, and that is public financing, and there is a bill, the House Clean Elections Act, that ought to be seriously considered by the members of this committee and the Members of this Congress.
Thank you.
Mr. WATT. Mr. Remcho.
Mr. REMCHO. Remcho.
I did want to respond to this wealth issue and, in fact, also coming out of the colloquy——
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Mr. WATT. Can you do that on his time, rather than mine, so that I can get a response to the question I asked? I want to—I want a response to that one, too, but I would just like it on his time.
Mr. REMCHO. The answer I have is that I think you are stuck with it, that—I share your concern that I don't think it is an accident. I represent basically people who want to be involved in the process. I don't think it is an accident that it happened before the election or that people want to do it to influence the election.
My concern is that anytime we try to put—the analogy is the Ku Klux Klan issue that you raised. Anytime we try to slice this up in such a way to meet some goal that deals with the problem you have, we wind up suppressing speech, and because these issues are so important, I mean this is the political life of the country. People are always going to try to find ways around it.
So I guess my answer, unfortunately, would be that I think you have to live with it, and frankly, we are all the better for it.
Mr. WATT. I am coming right down the line here.
Mr. Moramarco.
Mr. MORAMARCO. Moramarco. Thank you.
You have to live with part of it. The major reform proposals before Congress aren't going to eliminate those ads. They are however, going to require disclosures, and disclosure is constitutional. You shouldn't have to have these ads run under the banner, ''Americans for Better Government,'' or ''People Who Are for Goodness and Truth.'' You should at least be able to know, and the American public should be able to know, who is funding these ads.
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I think that is probably the limit. It is certainly the limit of what is before Congress and probably the constitutional limit.
Mr. PILON. The simple question to your timing question is that $1 spent against you 10 days before the election is worth a lot more than $1 spent 10 days after the election with an eye to the next election.
But the larger issue, and you have only focused on one side of it, namely, what do you——
Mr. WATT. Well, it is worth a lot more in the context of the election if you are trying to influence the outcome of the election.
Mr. PILON. Of course.
Mr. WATT. I am not sure that I agree that it is worth a lot more in terms of the information that it has or the issues that I—that is supposed—you know, it seems to me it would be worth a lot more in terms of influencing me on the issue in January of the year following the election, when the legislative session is about to start.
Mr. PILON. Yes, but the aim is not to influence you. The aim is to get rid of you, and of course——
Mr. WATT. I mean, that you have just—you have just proven exactly what I am saying.
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Mr. PILON. Of course we all know this. The only thing is, we turn—we turn our—we avert our gaze on what is going on. We all know this is going on, and the reason this is going on is because, as Mr. Bopp said, you can't give directly, so you have to give indirectly.
Now, you focused only on one side of it, those groups that appear 60 days before the election to raise issues on which you are on the opposite side. There are also complaints—when I testified in the Senate, I got complaints from Senators who said, ''I can take care of my enemies, save me from my friends.''
Mr. WATT. Oh, I agree with that. There were a fortunately a lot of them that came on my side to defend me because I couldn't talk to any of them, I couldn't coordinate with them.
Mr. PILON. And straighten them out.
Mr. WATT. So, to be honest with you, there was a point at which I said, hey, just get out of, get out of—I shouldn't call it my race, this is the public's race—that it biases to call it ''my race.''
Mr. WATT. [Continuing.] But, you know, it just does seem like there ought to be some fairness in this, if you are in the middle of a campaign.
Mr. PILON. Not fairness. What you want is——
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Mr. WATT. Democracy?
Mr. PILON. Freedom. And you will have a lot more money in your campaign if you will get rid of the limits on people giving to your campaign.
Mr. WATT. I have got one more person.
Mr. CANADY. The gentleman will have 2 more additional minutes.
Mr. WATT. Mr. Mason, are you going to have an opinion on this issue?
Mr. MASON. Certainly.
Mr. WATT. Then I have got two more.
Mr. CANADY. Make it 3 additional minutes.
Mr. WATT. One and a half minutes each.
Mr. BRIFFAULT. Mr. Watt, there is something you can do and, that is, as both Mr. Pilon and Ms. Murphy indicated, you can treat these communications as if they were part of the election, because Mr. Pilon says we all know they are part of the election.
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Ms. Murphy said they are part of the election, they are what is part of the election now.
What the Supreme Court was doing in defining express advocacy'' is saying we have to distinguish between communications that are part of the election and those that are part of the background in ongoing political debate.
I can't believe that we cannot take into account what we all know when we write legislation. Now, as Mr. Moramarco points out, no one has put on the table limiting these things; that would be unconstitutional. The Supreme Court has said you can do the following things about election communications:
You can require reporting and disclosure of sources;
You can impose reasonable contribution limits. What is reasonable may be different now than it was in 1974, I agree with that. And you can ban the use of corporate and union treasury funds to require corporations and unions to go through the political action committee device. The Supreme Court has sustained all of those things time and time again.
Mr. WATT. Did you put time constraints on that?
Mr. BRIFFAULT. That goes into defining what is part of the election. Time constraints have never been tested, so we don't know; there is no definitive answer on this. We are all talking about construing a decision that was rendered in 1976. As Mr. Bopp points out, there were no independent expenditures then. There was no so-called issue advocacy then. This has gone from basically zero to $350 million. It is now a sizable portion of the election.
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The Supreme Court has always indicated they would give considerable weight to congressional findings and congressional judgments. There has been no action by Congress and no finding by Congress, no judgment of Congress since 1974—since 1979 on FECA and on this issue, not since 1974.
The courts have not given great deference to the Federal Election Commission in this area. But I think Congress has a far greater legitimacy and has far greater power to take into account what, as my two colleagues have said, we all know is going on, and take that into account and use a time-based standard. The meaning of a message does turn on its context; the actual amount of time, I think, is debatable.
Mr. Bopp raises some legitimate points about 60 days. My own view would probably be a shorter time period. You can't cover everything. But I think at some point there is a sense amongst Members of Congress, amongst members of the public, amongst speakers, that we are in an election, and we are in an election and you talk about candidates.
That is going to be perceived by the public as attempting to influence their judgments about candidates. And as the court said, at that point, the public has a legitimate interest in finding out who is behind them; and the public has a legitimate interest in limiting the amount any one person could put in, to avoid the danger of undue influence, and the public has a legitimate interest in limiting corporate and union treasury funds.
When we are in an election, I think Congress can decide—it is up to Congress to decide when the election is; obviously, there is no line written in the sky, but I think by writing a bright line, you do provide the specific rule, the avoidance of vagueness the Supreme Court has delineated. You also have a objective standard.
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Mr. WATT. Don't take all of Mr. Mason's time. He is the only person who hasn't responded now.
Mr. MASON. Let me speak——
Mr. WATT. Unfortunately, every single one of you has given me an answer I don't want. But it is good. If this is the truth, there is the light.
Mr. CANADY. The gentleman will have 1 additional minute.
Mr. MASON. Let me speak about some of my experience on the Commission.
In 1996 the Democratic National Committee spent about $48 million on issue ads mentioning President Clinton, the Republican National Committee, about 14 million on ads mentioning Dole; not $1 of that was spent 60 days prior to the election.
So the big issue ad scandal that everybody screams about and says, gee, the Commission should have done something about it, wasn't in any 60-day period.
Number two, I know a lot of times Members of Congress are criticized by constituents and others, ''You have got a cushy job and you don't understand'' and so on; and a lot of time the response is, If I could just get all of my constituents to come up here and spend a week with me, then they would understand.
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If I can get all of my colleagues on this panel to come and spend a couple of weeks down at the Federal Election Commission trying to craft a standard which meets the requirements of not being vague and not being overbroad, I think they would be a little more modest about saying, Gee, we can do this.
I tried to craft an appropriate standard in the context of the Commission's presidential rulemaking. We put out a rule for comment that said if the parties mention a candidate, we are going to presume that that ad is for that candidate. But I thought there may be something, maybe an ad on the President's health plan, so that did not want to prohibit, put in an exception, sort of a rebuttable presumption, that I thought was fairly tightly drawn.
Mr. Bopp commented on it; he trashed it. Mr. Moramarco commented on; he trashed it. Counsel for the RNC trashed it. Counsel for the DNC trashed it. And what you run into is the practical difficulty of working out a standard other than express advocacy. Actually trying to write a standard not in the context of one court case, but that would be generally applicable to all campaigns and all ads, becomes nearly impossible. I tried and my colleagues on this panel unanimously agreed that I didn't do a very good job.
If somebody else can, I would love to see it.
Mr. WATT. Thank you, Mr. Chairman.
Mr. CANADY. Thank you, Mr. Watt.
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Mr. WATT. Mr. Barr.
Mr. BARR. Thank you, Mr. Chairman.
It may, Mr. Bonifaz, come as a surprise to you, but there are reasons why people get access to Members of Congress or Senators and other public elected officials that have nothing to do with money. Sometimes it has to do with how pleasantly people present their ideas, how professionally they present their ideas, how articulate an advocate they are.
You are a very articulate advocate, but I don't think making gratuitous cracks like your last one just before time expired really improved one's ability to gain access and to articulate ideas and have a professional exchange of them.
Mr. BONIFAZ. I am sorry you saw it that way.
Mr. BARR. Pardon?
Mr. BONIFAZ. I am sorry you saw it that way.
Mr. BARR. I am not sure you are. Because I think you intended it to be a wise crack about—something about, you know, the number of donors. I was just—we were having, up to that point, I thought a very good discussion.
Ms. Murphy and I have discussed these issues and other issues on a lot of occasions. I doubt that it is because she has contributed to my campaigns, I doubt she has, and I will continue to have a very good relationship with her on those issues on which we agree as well as——
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Mr. WATT. We do agree on some issues.
Mr. BARR. We do on a lot of issues, an increasing number of issues given what a lot of our colleagues are trying to do up here with invasions of privacy and so forth.
But I just say that, Mr. Bonifaz, I just don't think—maybe others like to be insulted and have cracks made, and I guess it comes to——
Mr. BONIFAZ. I was trying to state a fact, Congressman. I am sorry you saw it as an insult——
Mr. CANADY. It is his time.
Mr. BARR. There are facts that one can state that are relevant to an argument; there are facts that one perceives as facts that are clearly designed to throw a monkey wrench into a discussion. And I understand that, I understand that.
I would just like to state that, that it doesn't always help one's argument to do that. You may find it does in your case. I don't know.
Mr. Mason, if I could just ask you a question focusing on one particular aspect of campaign financing that was particularly problematic for a number of us in the last Congress—in the Government Reform and Oversight Committee, for example—and that is the foreign money.
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Are there any specific areas, in which based on your very extensive experience with the FEC, we could tighten up to make absolutely certain that foreign money should play no role in the electoral process here in this country?
Mr. MASON. Yes, sir, absolutely. And, in fact, the Commission has submitted a legislative recommendation exactly on that point. The foreign money ban applies very clearly to hard money donations to political parties, and there is no debate about that.
The Commission has traditionally interpreted that ban to apply to soft money donations to political parties, that is, to donations affecting State and local elections or to the national parties' general operating accounts. However, at least one recent court case has called into question that application, and so we have asked Congress to clarify that the law does apply, the foreign national contribution ban, does apply to soft money.
That would be tremendously helpful, because right now we are having cases—they are not principally our cases, but Justice Department cases—on criminal matters moving through the courts where those are problems—both the Trie and Hsia cases, which are now on appeal, and the Frankin Haney case have that issue involved in it.
Mr. BARR. Would you—and we may have that. The committee I am sure has it. The document that referred to, could you send a copy of that to my office?
Mr. MASON. Yes, I will.
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Mr. BARR. I would very much like to take a look at that. Thank you.
Thank you, Mr. Chairman.
Mr. CANADY. Thank you. I want to—and in conclusion here—pick up on something that Ms. Murphy has made reference to a couple of times, and that is the distinction that is made between advocacy by groups of whatever description and advocacy by the press, because under some of the proposals that are under consideration very tight restrictions would be imposed on the circumstances under which groups could criticize Members of Congress for instance.
While we obviously would not think of imposing parallel restrictions on the press, and that raises a real question, and I think—and don't get me wrong, I am not suggesting that we impose such restrictions on the press; I think that would be a bad idea. I think it would also be unconstitutional.
But I think you have to recognize—excuse me. We have some votes. But I think I will be finished before we need to go.
But it seems to me that we have to recognize the reality that the press does have in many cases a big influence on voters' perceptions of people running for office. That is just a fact of life in democracy.
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There are some people that run for office, who are dogged by the press. There are some newspapers—I have seen this happen in public life: A newspaper will, for whatever reason—it may be justified—they will go on a crusade against a particular public official, and there are editorials, there are news stories, 1 day there is the editorial, the next day is the news story. And I am sure—I am thankful I have never been on the receiving end of such a campaign.
I have seen that happen, and I am sure the people on the receiving end of that would like to pass a law to stop that. And sometimes that happens—it gets more intense the closer the election gets, and of course, those editorials come out. Again, that may not seem fair.
And you talk about money. I mean, the people who own newspapers aren't poor, the last time I checked. And it is almost like some—under some of those proposals saying, if you have enough money to actually go out and buy a newspaper or a radio station or a television station, there are going to be absolutely no restrictions on what you can do and say editorially or in the news; but if you are a lowly right to life chapter somewhere, we are going to run you through the mill over here with Mr. Mason and his friends.
If all of his friends are like Mr. Mason, I would be much less concerned about it.
But that just does not seem to me to be fair; that does not seem to be right. And it does not seem to address the kind of concerns that I think everybody at the table has. And I state that more as a dilemma than as anything else. It is not—because I recognize there are problems.
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And I will just—personally, I don't like raising money; I have never liked that. I think it is part—as a Member of Congress, I don't want to spend any of my time doing that. That would be my—if I could, and I haven't done much. I have been able to get reelected anyway, and I got elected against an opponent who had more money than I did.
And just to comment and follow up on what Mr. Barr had to say, his exchange with Mr. Bonifaz, I think there is sometimes a misperception about the way Members view contributors. I will tell you, there are people who are on Social Security who will regularly send me a $10 check. And my esteem for them and appreciation for their expression of support for me far exceeds my esteem and appreciation for some people who give me a lot more money, because I recognize that that small contribution means a lot to that person, and it is a personal statement.
Now, does that affect my vote one way or the other? No. I have come here with certain views about the role of government; that is what shapes the way I vote. But I just think there is a misconception about the way at least some Members view contributors and the way the whole process works. And so I throw that in for what it is worth.
Mr. Pilon.
Mr. PILON. Yes, your first point I want to address; then I have to run, as you know.
Mr. CANADY. I do, too.
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Mr. PILON. You have raised probably one the most important reasons, in my view, for eliminating the contribution limits that are now in place. You have got media, when you are up against a Rupert Murdoch or an Arthur Ochs Sulzberger or whoever the case may be who is editorializing against you, you know what real power is, and the only way you can overcome that is by having a substantial amount of money to mount a campaign to put the other side out.
If you are campaigning with one hand tied behind your back against the media in your particular district, you are at an extraordinary disadvantage, and if that is true for you who enjoys the privileges of incumbency, a foriori, it is true for any challengers. And we haven't even said much today about challengers, who are the people most disadvantaged by the current limits on campaign contributions.
These are the people who, unless they are independently wealthy, face insurmountable challenges. That is the reason why you have 98 percent reelection rates in the House as we had in the last election. It is because anybody who seeks to challenge you is facing an extraordinarily difficult problem unless he is independently wealthy. That is what we have come to under the current regulations.
Mr. CANADY. Well, I think that is an interesting observation, and I want to thank all of the members of the panel this afternoon for your contribution. I think all of you have really done a good job in expressing your respective viewpoints, which are obviously quite diverse. But I believe that the sort of testimony you have provided is very valuable to the Congress as we consider these important issues about how we govern ourselves.
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Thank you very much. The——
Mr. WATT. Mr. Chairman.
Mr. CANADY. Yes.
Mr. WATT. I ask unanimous consent to submit for the record the testimony of Donald J. Simon, Executive Vice President and General Counsel of Common Cause; a statement from Representative Jerry Nadler, and my profound opening statement which I never got the opportunity to deliver.
Mr. CANADY. Without objection. And I want to thank Mr. Watt for being here. I understand that he has had a lot going on this afternoon. I am sorry we had the conflict between this meeting of the subcommittee and the activities of the Judiciary Committee on the floor in connection with the bankruptcy bill in which Mr. Watt has played a role throughout the deliberations. I appreciate his willingness to juggle both of these and participate in the hearing.
This subcommittee is adjourned.
Mr. WATT. Great job.
[Whereupon, at 4:32 p.m., the subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
PREPARED STATEMENT OF DONALD J. SIMON. EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL OF COMMON CAUSE
I appreciate the opportunity to present the views of Common Cause on constitutional issues and campaign finance reform. Common Cause supports H.R. 417, the bipartisan campaign finance reform bill introduced by Representative Christopher Shays (R–CT) and Representative Martin Meehan (D–MA). The Shays-Meehan bill would close the soft money loophole which allows unlimited and unregulated funds from corporations, labor unions and wealthy individuals to be funneled into federal campaigns. It would also require that the money spent on all campaign ads—including those run as sham ''issue ads''—be subject to the same campaign finance rules, including disclosure, that apply to all other campaign ads.
Some groups have stridently and inaccurately attacked the Shays-Meehan bill as an unconstitutional attempt to penalize the exercise of rights that are protected by the First Amendment. These attacks are based either on a distortion of the legislation, or on a mischaracterization of the applicable constitutional doctrine. We want to correct the record on both counts.
1. General Constitutional Principles
Contrary to what critics allege, the Supreme Court has repeatedly recognized that Congress, consistent with the First Amendment, possesses a broad ability to protect the political process from corruption and the appearance of corruption.
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The Court has upheld, as constitutional, limits on contributions by individuals and political committees to candidates, to political committees and to the,political parties. These regulations, the Court said in Buckley v. Valeo, 424 U.S. 1 (1976), ''limit the actuality and appearance of corruption resulting from large individual financial contributions.'' 424 U.S. at 26. Further, the Court specifically noted that the contribution limits in the law ''do not undermine to any material degree the potential for robust and effective discussion of candidates and campaign issues by individual citizens, associations, the institutional press, candidates and political parties. '' 424 U.S. at 29.
The Court has also broadly upheld the disclosure requirements in the campaign finance laws. In Buckley, the Court wrote that disclosure rules are constitutional because they serve ''governmental interests sufficiently important to outweigh the possibility of infringement [of First Amendment rights].'' 424 U.S. at 66. These interests include providing information to voters about where campaign money comes from and how it is spent, deterring corruption by exposing large contributions to the light of publicity, and gathering data to detect violations of the contribution limits. 424 U.S. at 66–69.
Finally, the Court has upheld a total ban on contributions and expenditures by labor unions and non-ideological corporations, even though such a ban plainly touches on First Amendment interests. This ban, the Court held, serves to combat ''the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form . . . '' Austin v. Michigan State Chamber of Commerce, 494 U.S. 652, 660 (1989).
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These general principles—upheld by the Supreme Court—form the constitutional foundation on which the Shays-Meehan bill rests:
that campaign financing may be regulated to serve the compelling interests in deterring corruption and the appearance of corruption,
that contributions to candidates and political parties may be limited and in some cases banned entirely,
that requiring disclosure of campaign finances is permissible, and
that corporate and union contributions and expenditures in federal elections may be banned because of their distorting effect on the electoral process.
2. A ban soft money is constitutional.
The Shays-Meehan bill prohibits the national parties from accepting or spending money that does not comply with the federal campaign finance laws. Thus, the national parties would be barred from accepting contributions from corporations and labor unions entirely, and from individuals in excess of $20,000 per year.
This provision of Shays-Meehan is completely consistent with the source prohibitions and contribution limitations previously upheld by the Supreme Court. The Court has already found it constitutional for Congress to limit the amount of money that an individual can give to a political party, and the Court has already found it constitutional to ban corporate and union contributions to political parties. Thus, banning the receipt of soft money by the national political parties is well within existing constitutional doctrine. The soft money provisions of Shays-Meehan merely implement existing constitutional principles by closing a loophole that is being used to evade permissible rules.
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Critics argue that the national parties are constitutionally entitled to raise soft money if the money is used for purposes other than influencing federal campaigns, such as for issue ads. But this reasoning puts the cart before the horse. It is analogous to arguing that because candidates are not limited in the amount of money they spend, they cannot be limited in the size of the contributions they receive.
But this is clearly not the analysis the Supreme Court has used. Spending by federal candidates is not limited under current law, but the size of contributions received by federal candidates is—precisely because the Court recognized that there is a potential for corruption in large contributions received by candidates, whatever the money is spent for.
Thus, the Court has focused on the corrupting effect that corporate and large contributions have on the recipient, no matter what purpose the money is used for. This corrupting effect is hardly a theoretical concern with soft money: overwhelming evidence from the 1996 campaign demonstrates that the raising of soft money by high-level federal officials for the political parties had precisely the effect the Court feared ''the actuality and appearance of corruption.'' Thus, a ban on party soft money would restore integrity to the rules governing party hard money—and close the loopholes used to evade those rules—thereby serving the compelling interests on which the Court relied in deeming those hard money contribution limits and source restrictions to be constitutional.
The Shays-Meehan bill also requires the state parties to spend only hard money on activities which affect federal campaigns. This principle is also clearly constitutional: state parties have always been required to spend exclusively hard money on federal campaign activities, which is why state parties raise hard money. The only change made by the Shays-Meehan bill is to clarify that certain specified activities—get-out-the-vote and voter registration drives in federal election years, and ads which name federal candidates—are activities which predominantly affect federal campaigns and thus require hard money funding by state parties.
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It is well within the prerogatives of Congress to define certain activities as affecting federal campaigns. As the Court said in Buckley, ''The constitutional power of Congress to regulate federal elections is well established . . .'' 424 U.S. at 13. And numerous lower court decisions have upheld federal regulation of state election activities that impinge on federal elections. E.g., United States v. Mason, 673 F. 2d 1737, 739 4th Cir. 1982); United States v. Bowman, 636 F.2d 1003, 1011 (5th Cir. 1981). Again, the factual record clearly supports a reasonable congressional judgment that the activities specified by the bill do affect federal campaigns and thus should be funded with federally permissible contributions.
Critics of this provision distort the legislation. The bill does not ''federalize'' state parties in violation of the Tenth Amendment, or in any way restrict the kind or amount of money that state parties can raise. Nor does it in any way limit or regulate the money spent by state parties solely on state election activities. Instead, the Shays-Meehan legislation regulates state party activity only to the extent it affects federal elections, a provision that builds on a longstanding principle of the federal campaign finance laws and that is well within congressional power to regulate federal campaigns.
In sum, the soft money provisions of Shays-Meehan rest on a strong constitutional foundation. It is for this reason that 125 constitutional scholars signed a letter sponsored by the Brennan Center for Justice in September, 1997 expressing confidence that a ban on soft money would meet constitutional scrutiny. As that letter stated, ''[C]losing the loophole for soft money contributions is in line with the longstanding and constitutional ban on corporate and union contributions in federal elections and with limits on the size of individuals' contributions to amounts that are not corrupting.''
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3. Congress can constitutionally define ''express advocacy.''
In Buckley, and subsequently in Massachusetts Citizens for Life v. FEC, 479 U.S. 238 (1986)(MCFL) the Supreme Court construed certain provisions of the federal campaign finance laws, including the ban on corporate and union spending, to apply only to speech which contains ''express advocacy.'' The Court made this ruling in the context of holding that the application of certain statutory standards in the election laws—phrases such as spending ''for the purpose of influencing'' campaigns or ''in connection with'' campaigns—were too vague to give reasonable notice of their scope to outside groups such as corporations. Therefore, as a matter of judicial construction, the Court imposed a narrowing interpretation on these phrases to cover only ''express advocacy.'' The Court in Buckley said that express advocacy includes communications which use words such as ''vote for'' or ''vote against.''
The Supreme Court itself expanded this definition in MCFL, where it held that somewhat less direct language nonetheless constituted ''express advocacy.'' The Court reached this conclusion by noting that the language at issue in that case ''in effect'' advocated the election of certain candidates because its ''essential nature'' was advocacy. 479 U.S. at 249. Thus, the Court indicated that it would not be bound by a wooden and mechanistic definition of ''express advocacy'' limited only to a narrow set of ''magic words.''
The doctrine set forth in Buckley and MCFL has proven controversial. Some lower courts have interpreted these cases to stand for the proposition that, as a constitutional matter, only speech that includes the so-called ''magic words'' can be subject to regulation under the campaign finance laws. E.g. FEC v. Christian Action Network, 92 F.3d 1049 (4th Cir. 1997); Maine Right to Life Comm. v. FEC, 98 F.3d (1st Cir. 1996) cert. den. 118 S.Ct. 52 (1997). Other lower courts have held that the ''magic words'' standard is one permissible, but not the only permissible, test for express advocacy. E.g., FEC v. Furgatch, 807 F.2d 857 (9th Cir.) cert. den. 484 U.S. 850 (1987). This reading leaves room for Congress to formulate other tests that satisfy the vagueness concerns in Buckley.
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Ultimately, this question will have to be decided by the Supreme Court, which has not resolved the dispute in the lower courts nor commented on the issue since the MCFL case in 1986.
The Shays-Meehan bill provides two alternate definitions of ''express advocacy'' in addition to ''magic words.'' The first defines express advocacy to include ads which clearly identify a candidate and which are broadcast on radio or TV within 60 days of an election. This standard is clear cut and suffers from no potential vagueness problem. Critics respond by attacking this test as overbroad, in that they allege it is possible to conceive of broadcast ads mentioning a candidate close to an election that would not be for the purpose of influencing the election.
But the overbreadth of a statute is not unconstitutional unless it is substantial unless the statute would repeatedly be used to suppress speech that is not properly within its scope. E.g., Broadrick v. Oklahoma, 413 U.S. 601 (1973). Here, by contrast, Congress is surely entitled to make a reasonable judgment that the overwhelming majority of broadcast ads that refer to a candidate within the immediate pre-election time frame do affect the election. Certainly, the experience of the 1996 and 1998 campaigns clearly demonstrated that ads without ''magic words'' were used to openly evade the campaign finance laws.
Thus, even though it may be possible to think of non-campaign ads that fall within the test, Congress can make a reasonable determination that a clear bright-line time frame test is not substantially overbroad and is therefore constitutional. As the Supreme Court said in Buckley in rejecting an overbreadth challenge to the bright line threshold amount set for disclosure of contributions, ''[W]e cannot require Congress to establish that it has chosen the highest reasonable threshold. The line is necessarily a judgment decision, best left in the context of this complex legislation to congressional discretion.'' 424 U.S. at 83. So too here.
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The alternative test in the bill that an ad ''unmistakably and unambiguously'' advocate the election or defeat of a candidate is derived from the Ninth Circuit decision in Furgatch. Thus, this is a test which was developed by and upheld as constitutional by a Circuit Court of Appeals. Although an FEC regulation based on a similar test was struck down by the First Circuit, this says only that there is a conflict among the circuits which needs to be, but has not yet been, resolved by the Supreme Court.
It is certainly appropriate for Congress to add its voice to this debate by making factual determinations and providing a legislative history as to the abuse caused by the reliance solely on a ''magic words'' test. This test is being used to undermine key provisions of the election laws—including the ban on corporate and union spending that the Court has repeatedly upheld as serving compelling governmental purposes. A more clearly defined test of express advocacy is needed to close this loophole, and in related contexts, the Court has held that such loophole-closing measures are permissible. See California Medical Association v. FEC, 453 U.S. 182 (1981).
Critics of this provision distort the intent of the bill by claiming it is meant to regulate or ban issue discussion. Nothing of the sort is true. The question before Congress is not whether issue ads should be limited, or regulated, or banned. They should not be. The question, instead, is whether campaign-related ads should be allowed to escape the campaign finance laws—regulations that serve compelling public purposes—simply because those campaign ads are crafted to masquerade as something else.
Thus, this debate is not about whether to regulate issue advocacy. It is about how to draw a more correct line between issue advocacy, on the one hand, which is not subject to regulation, and electioneering or campaign advocacy, on the other hand, which clearly and constitutionally is. That line must protect an unfettered public right to engage in issue discussion, but not at the expense of sacrificing the integrity of the laws regulating money in the political process.
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The Shays-Meehan bill takes up the invitation of the Supreme Court in Buckley to draw a better and clearer line in the election laws than the vague phrases used in the 1974 Act. The Supreme Court will ultimately have to resolve the dispute in the lower courts about whether Congress may depart from the ''magic words'' test. And in doing so, the Court will have to decide whether the new standards in this legislation appropriately balance the need for clarity with a concern for overbreadth, in light of the compelling purposes served by campaign finance regulation. We believe the Supreme Court will decide in favor of this law.
4. Conclusion
Contrary to the claims of critics, the Supreme Court has upheld broad regulation of campaign financing, including a limit on contributions to parties, and a ban on all corporate and union treasury money in the federal political process. The provisions of the Shays-Meehan bill conform to these constitutional principles and serve the purposes of deterring corruption and the appearance of corruption, purposes that the Supreme Court has deemed compelling. Arguments to the contrary by critics of the legislation are based on severe and willful distortions both of the statutory language at issue, and the constitutional principles to be applied.
PREPARED STATEMENT OF HON. JERROLD NADLER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK
Mr. Chairman, I hope this hearing will make it clear that it is possible to enact campaign finance reform without threatening free speech or the First Amendment. The question of political speech and the First Amendment for our purposes begins with 1976 Supreme Court Buckley v. Valeo decision, in which the Court equated spending money in the political arena with the First Amendment right of free speech. Although some people today use this ''money equals speech'' equation to argue that all limits in campaign contributions and spending are unconstitutional, the Buckley ruling did not go that far. The Court struck down limits on spending but did allow limits on the size of contributions in order to prevent ''corruption or the appearance of corruption.''
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Another question, Mr. Chairman, is by protecting the speech rights only of those who give and spend large sums of political money, the Buckley decision ignored the rights of all those whose political speech is thereby drowned out. Indeed, if money equals speech, doesn't that mean that people without money are deprived of speech?
Critics have suggested that we raise the contributions limits, however, this is a very troublesome proposition. Constitutional questions aside, there are practical effects of removing or even raising the current limits in contributions. Yes, it would make it easier to get larger amounts of money more quickly and candidates would not have to spend as much time fundraising. But would that be worth the tradeoff of allowing wealthy donors to dominate the electoral and policy making arenas of government even more than they do today? And while some of the proponents of campaign finance deregulation argue that allowing people to make larger contributions would make more money available to challengers, past patterns of giving make it clear that most of the additional money would go to incumbents.
I strongly believe that campaign finance reform must be passed by Congress and I remain committed to working with my colleagues to ensure swift passage of legislation that will break the grip of special interest money on our political process. It is outrageous that the House leadership has once again refused to schedule debate on this crucial issue. In the 105th Congress, on a bipartisan basis, the House of Representatives passed the Shays-Meehan Bipartisan Campaign Finance Reform Bill. Unfortunately the bill died in the Senate. We are hopeful that we can once again pass campaign finance reform legislation during the 106th Congress, however, it appears that the forces of delay and special interests are moving swiftly to quash any real effort at reform.
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Mr. Chairman, although I am an original cosponsor of H.R. 417, ''The Bipartisan Campaign Finance Reform Bill of 1999,'' I believe in a stronger approach to reforming our campaign financing system that will not only pass constitutional muster but it will empower citizens to become more involved in the political process as well as break the strangle hold that the well financed special interests place on our electoral system. I once again with my colleague Representative John Tierney, will co-sponsor ''The Clean Money, Clean Elections'' campaign finance reform bill, which would reform the current system in a more comprehensive manner. Our bill would do the following:
— It will provide full public disclosure of private money candidates fund-raising and spending. An informed public is the surest antidote to special influence and corruption;
— It will open up the political process so that individuals who are not incumbents, who are not independently wealthy, or who do not have access to the resources of a privileged few, can now compete effectively in elections;
— It will ensure that no particular sector of society receives any special advantage; and
— It will break the link between political campaigns and special interest money by substituting public resources for private donations. So long as public officials must solicit large amounts of private funds to seek reelection, the danger of an inherent conflict of interest on the legislative process will remain.
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To fulfill these criteria, the Clean Money, Clean Elections campaign finance reform bill provides a mechanism for candidates to communicate effectively with voters in a manner that makes them the least reliant on funds from private donors. It does so by making available access to publicly-financed and reduced-cost television and radio time and postage. The advantage of public financing is that it enables candidates to educate voters about their positions on issues without having to rely on private contributors. It also helps candidates who are challenging incumbents, who are often least able to raise funds. Public financing levels the playing field, and breaks the lock special interests have on financing campaigns. Our bill had 33 cosponsors last Congress and was debated by the fall House during last year's floor debate on campaign finance reform.
Mr. Chairman, I believe the ''Clean Money, Clean Elections'' bill represents the most comprehensive approach to reforming our system. The bill would leave First Amendment protections in place while at the same time ensure that every citizen's vote and voice counts equally. Finally, I believe that our electoral process is in trouble and we must pass comprehensive campaign finance reform legislation soon. Rather than attempting to delay enactment of campaign finance reform legislation, Congress should address the issue immediately. We cannot ignore the reality that wealth is the driving force in our electoral process, thus isolating and alienating millions of Americans. This must stop, and we must bring fairness and integrity back to our electoral process. Thank you.
PREPARED STATEMENT OF HON. MELVIN L. WATT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NORTH CAROLINA
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Thank you, Mr. Chairman, for calling this hearing on an issue of great importance to our democracy.
Whatever one might think of the various reform options, we all have an interest in maintaining the confidence of our constituents in the election and campaign process. Our democracy, at its core, depends on the confidence of our fellow citizens, those who watch as primary challengers make themselves known, those who come to the community gatherings to hear from potential Representatives, those who listen to the countless speeches and those who ultimately vote. Their confidence is at stake as we discuss campaign finance reform. So, I am pleased to be a part of a hearing that addresses what sorts of reforms are constitutionally permissible, and I hope that our hearing today continues the efforts made by the Chairman and other subcommittee members to keep discussions such as this on a high plane.
With that backdrop, I come to this hearing somewhat conflicted about this issue. On the one hand, the reality is that it costs a lot of money to run for federal office these days. Back in 1994, 80 percent of Congressional campaign contributors gave more than $200. The Washington Post estimated that the 1996 campaign season cost both parties a combined $2.7 billion dollars, with an additional $70 million in third party expenditures. Prior to my election to this body, I served as a campaign manager for a Senate candidate. That campaign, which was unsuccessful, required more than $10 million to run, and we could have used more. In my own experience as a candidate, I also know about the significant costs of running a House campaign, as do all of us.
As campaign costs have risen, many of us continue to question whether reforms are necessary, and if they are necessary, whether there is a constitutional way to implement those reforms. I resist the temptation to take the cynical view that opponents of reform are comfortable with the current system because it favors them. I'd like to think that most opponents of reform resist it because they are skeptical, and I like to think that they are skeptical because they are not convinced that reform efforts that conform to the constitutional principles set forth in Buckley and its progeny will not work in a meaningful way. Part of me, I must admit, carries this sort of doubt.
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I'll provide one hypothetical that makes my point here. Suppose two candidates are running for federal office. Both candidates have been faithfully observing the current campaign finance laws, and even agreed to voluntary spending limits on campaign related expenditures. Suppose further that one of the candidates opposes Issue A. Under current law, a third party, such as an industry organization that supports Issue A, can run ads that attack that candidate for his or her position on that issue. These ads can contain the candidates' likeness, the name of the candidate and ominous background music. However, as long as the ads do not contain the ''magic words''—''vote for'' or ''vote against''—they can be run endlessly in the final weeks of a campaign and really impact the outcome of the election, as they no doubt were designed to do. My point is that, even if we were to impose constitutional methods to limit the amount of money spent between candidates, we would still have the problem of third parties (non-candidates) influencing elections. How do we create a campaign system that allows people to speak and yet does not undermine our campaign finance laws or compromise the confidence of the public? I hope that this hearing will help me as I try to wrestle with this question.
There is another side to this issue, however. I think about people I know who feel detached from the political process. People who do not support candidates financially because they figure their contributions would be too modest to make a difference. People who do not have the opportunity to come to the big fundraisers and conventions to rub shoulders with those who shape the policies that affect their lives. People who cannot afford to run an independent television ad in support of the issues they care about. The people I am speaking of may not be able to put a price tag on influence but they will tell you that they cannot afford it. So, they look at us, as we sit in rooms like this, and shake their heads. The campaigning system excludes many of them, and it is an unfortunate reality that, as a result of this exclusion, they feel that our representation does not include them. Don't we have a duty, as Representatives, to ensure that our constituents, all of our constituents, have confidence in the political process?
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I am hopeful that this hearing will help me, as I consider this issue. I am thankful to those of you who have taken time away from your busy schedules to join us.
(Footnote 1 return)
I wish to acknowledge the work of my Executive Assistant, John K. Abegg, in conducting legal research and preparing the case summaries in this section on anonymous political speech.
(Footnote 2 return)
''Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all.'' Id. at 64.
(Footnote 3 return)
See City of Bogalusa v. May, 212 So.2d 408 (1968) (Louisiana Supreme Court struck down a municipal ordinance prohibiting the distribution of circulars and pamphlets which did not identify the distributor); State v. Fulton, 337 So.2d 866 (1976) (Louisiana Supreme Court struck down state statute prohibiting the publication and distribution of any material concerning a candidate, where the material did not identify the person responsible for its publication); State v. Burgess, 543 So.2d 1332 (1989) (Louisiana Supreme Court struck down state statute which prohibited the publication, distribution, or transmission of ''any oral, visual, or written material containing any statement which makes scurrilous, false, or irresponsible adverse comment about a candidate . . . or about a proposition to be submitted to the voters, unless the publication contains the name(s) of the person(s) responsible for its publication.'')
(Footnote 4 return)
''Throughout the history of this country, from revolutionary patriots seeking to cast off the injustices of a tyrannical monarch to modern day members of the NAACP seeking to cast off the injustices of a separate and unequal society, anonymity has been the necessary refuge of those who would serve worthy but unpopular causes. History contains too many examples of the unpopular and persecuted causes and pariahs of the past that were forced to find refuge in secrecy only to become the truths and heroes of a later day. The price we are required to pay for the protection of this refuge which our society has deemed valuable to the achievement of democratic goals is that we may have to endure some offensive speech arising from ignoble motives. We might better bear such offensive speech if we keep in mind how offensive George III must have found the anonymous and pseudonymous pamphleting of the revolutionary patriots.'' Id. at 1.
(Footnote 5 return)
Although bound by it, the Fourth Circuit appeared skeptical about the Virginia Supreme Court's construction. Virginia Society For Human Life, Inc. v. Caldwell, 152 F.3d 268, 270–272 (4th Cir. 1998).
(Footnote 6 return)
During the appeal in Terry, Kentucky repealed the disclaimer statute the Plaintiffs had originally challenged. This statute had prohibited anonymous political speech generally. Kentucky replaced this statute with the statute the Terry Court analyzed and which only prohibited anonymous express advocacy (independent expenditures). This opinion does not, therefore, hold there is no right to engage in anonymous electoral speech that falls short of express advocacy.
(Footnote 7 return)
Pursuant to House Rule XI, clause 2(g)(4): in the current and preceding two fiscal years, neither I nor the Cato Institute has received any federal grant, contract, or subcontract; and a biographical sketch follows this statement.
(Footnote 8 return)
For a useful history of the early years of free speech protection, see David M. Rabban, Free Speech in Its Forgotten Years (1997).
(Footnote 9 return)
In the current Congress, see H.R. 417 in the House, the ''Bipartisan Campaign Finance Reform Act of 1999,'' commonly known as ''Shays-Meehan''; see S. 26 in the Senate, the ''Bipartisan Campaign Reform Act of 1999,'' commonly known as McCain-Feingold.
(Footnote 10 return)
See, e.g., Campaign Reform: Insights and Evidence, a ''Report of the Task Force on Campaign Reform,'' funded by the Pew Charitable Trusts and published by the Woodrow Wilson School of Public and International Affairs, Princeton University, September 1998.
(Footnote 11 return)
Lillian R. BeVier, ''Campaign Finance 'Reform' Proposals: A First Amendment Analysis,'' Cato Policy Analysis No. 282, Sept. 4, 1997.
(Footnote 12 return)
Douglas Johnson and Mike Beard, '' 'Campaign Reform': Let's Not Give Politicians the Power to Decide What We Can Say about Them,'' Cato Briefing Paper No. 31, July 4, 1997.
(Footnote 13 return)
2 U.S.C. §431 et seq. (amended 1974).
(Footnote 14 return)
424 U.S. 1 (1976).
(Footnote 15 return)
See James Bopp, Jr., and Richard E. Coleson, ''The First Amendment Is Not a Loophole: Protecting Free Expression in the Election Campaign Context,'' 28 University of West Los Angeles Law Review 1 (1997).
(Footnote 16 return)
116 S. Ct. 2309 (1996).
(Footnote 17 return)
FEC v. Christian Action Network, Inc., 110 F. 3d 1049 (4th Cir. 1997).
(Footnote 18 return)
See, e.g., First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978); California Medical Association v. FEC, 453 U.S. 182 (1981); FEC v. National Right to Work Committee, 459 U.S. 197 (1982); FEC v. National Conservative Political Action Committee, 470 U.S. 480 (1985); FEC v. Massachusetts Citizens for Life, Inc. 479 U.S. 238 (1986); Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990); FEC v. Colorado Republican Federal Campaign Committee, 116 S.Ct. 2309 (1996).
(Footnote 19 return)
The analysis that follows draws heavily upon the study by Professor BeVier, note 5 above.
(Footnote 20 return)
Buckley, at 14 (quoting Mills v. Alabama, 384 U.S. 214, 218 (1966).
(Footnote 21 return)
Id. at 20.
(Footnote 22 return)
Id. at 21.
(Footnote 23 return)
Id. at 19.
(Footnote 24 return)
Id. at 26.
(Footnote 25 return)
Citizens Against Rent Control v. Berkeley, 454 U.S. 290, 296 (1981).
(Footnote 26 return)
See Bradley A. Smith, ''Campaign Finance Regulation: Faulty Assumptions and Undemocratic Consequences,'' Cato Policy Analysis No. 238, pp. 8–11, Sept. 13, 1995, and the citations therein.
(Footnote 27 return)
Carver v. Nixon, 72 F.3d 633, 637 (1995) (citing Buckley at 30).
(Footnote 28 return)
BeVier, note 5 above, at 12 (citing Buckley at 45).
(Footnote 29 return)
Shrink Missouri Government PAC v. Maupin, 71 F.3d 1422, 1426 (8th Cir. 1995).
(Footnote 30 return)
Colorado at 2330–31.
(Footnote 31 return)
807 F.2d 857 (9th Cir. 1987).
(Footnote 32 return)
Id. at 861.
(Footnote 33 return)
The author thanks attorneys Richard E. Coleson, Robert J. Newmeyer, Paul R. Scholle, and Raeanna Moore of the law firm of Bopp, Coleson & Bostrom for research and writing assistance.
(Footnote 34 return)
Throughout the article, note will be taken of cases in which the author and other members of the law firm of Bopp, Coleson & Bostrom are or have been engaged.
(Footnote 35 return)
The James Madison Center for Free Speech has not received any federal grant, contract or subcontract within the preceding two fiscal years.
(Footnote 36 return)
See, e.g., James Bopp, Jr., Testimony on Behalf of the Free Speech Coalition, Inc. Before the Committee on Rules and Administration, United States Senate (Mar. 13, 1996); Supplemental Testimony of James Bopp, Jr. Before the Committee on Rules and Administration, United States Senate (Mar. 22, 1996); James Bopp, Jr., Testimony on Behalf of National Right to Life Committee, Inc., Before the Subcommittee on the Constitution of the Committee on the Judiciary House of Representatives, United States Congress (September 18, 1997).
(Footnote 37 return)
Some of the material below is adapted from the testimony and article cited.
(Footnote 38 return)
''Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or of the right of the people to peaceably assemble, and to petition the Government for a redress of grievances.'' U.S. Const. amend. I.
(Footnote 39 return)
The Buckley Court also quoted approvingly the comments of the United States Court of Appeals for the District of Columbia, which it affirmed:
(Footnote 40 return)
The several federal courts of appeal that have applied Buckley and MCFL have faithfully adhered to the ''explicit'' or ''express'' words of advocacy test according to its plain terms. See North Carolina Right To Life, Inc. v. Bartlett,* 168 F.3d 705, 712–13 (4th Cir. 1999) (affirming that definition of ''political committee,'' which included organizations ''the primary or incidental purpose of which is to support or oppose any candidate or . . . to influence or attempt to influence the result of an election,'' is unconstitutional); Virginia Soc'y For Human Life, Inc. v. Caldwell,* 152 F. 3d 268, 270 (4th Cir. 1998) (definition of ''political committee,'' which included organizations that had a ''purpose of influencing'' elections, could not be narrowed by a federal court to include only groups that engage in express advocacy) (''VSHL''); Brownsburg Area Patrons Affecting Change v. Baldwin,* 137 F.3d 503, 505 (7th Cir. 1998) (''The Court [in Buckley] recognized the important First Amendment interest in protecting political speech, including discussions surrounding elections and candidates . . . Because of the vital importance of protecting such speech, the Buckley court articulated what has become known as the 'express advocacy' test . . .'') (emphasis added); FEC v. Christian Action Network, Inc., 110 F.3d 1049, 1051 (4th Cir. 1997) (express advocacy ''limited to . . . communications which literally include words which in and of themselves advocate the election or defeat of a candidate'') (''CAN II''); Maine Right To Life Comm., Inc. v. FEC,* 914 F. Supp. 8, 12 (D. Me. 1996) (''What the Supreme Court did [in adopting the 'express advocacy' test] was draw a bright line that may err on the side of permitting things that affect the election process, but at all costs avoids restricting, in any way, discussion of public issues.''), aff'd per curiam, 98 F.3d 1 (1st Cir. 1996) (''[W]e affirm for substantially the reasons set forth in the district court opinion.'') (''MRLC''); Faucher v. FEC,* 928 F.2d 468, 472 (1st Cir. 1991) (''In our view, trying to discern when issue advocacy in a voter guide crosses the threshold and becomes express advocacy invites just the sort of constitutional questions the Court sought to avoid in adopting the bright-line express advocacy test in Buckley.''); FEC v. Central Long Island Tax Reform Immediately Comm., 616 F.2d 45, 53 (2d Cir. 1980) (en banc) (''CLITRIM'') (FEC's definition of ''expressly advocating the election or defeat'' effectively included ''implied'' advocacy'' and was, therefore, ''totally meritless.''). In addition to Bartlett, VSHL, CAN II, MRLC, Faucher and CLITRIM, the federal district courts have overwhelmingly followed suit. See Kansans for Life, Inc. v. Gaede,* 1999 WL 115156, at *7–10 14–19 (D. Kan. Feb. 24, 1999); Iowa Right To Life Comm., Inc. v. Williams,* No. 4–98–CV–10399, slip. op. at 9 (S.D. Iowa Oct. 23, 1998) (''This Court cannot agree with defendants' position. The First and Fourth Circuit Courts of Appeals recently have rejected Furgatch's 'read as a whole' language—which would allow defendants to consider external factors such as the timing of the communications—in favor of the 'bright-line rule' requiring explicit or express words of advocacy set forth by the Supreme Court in Buckley and MCFL.''); Right to Life of Mich., Inc. v. Miller,* 23 F. Supp.2d 766 (W.D. Mich. 1998) (regulation prohibiting corporate communications containing the ''name or likeness of a candidate'' within 45 days of an election facially overbroad); Planned Parenthood Affiliates of Mich., Inc. 1v. Miller, 21 F. Supp.2d 740 (E.D. Mich. 1998) (same); Right To Life of Dutchess County, Inc. v. FEC,* 6 F. Supp.2d 248 (S.D. N.Y. 1998) (FEC's contextual definition of ''expressly advocating'' facially overbroad); Clifton v. FEC,* 927 F. Supp. 493, 496 (D. Me. 1996), aff'd on other grounds, 114 F.3d 1309 (1st Cir. 1997) (''[T]he United States Supreme Court explicitly has narrowed FECA's very broad prohibition against corporate election-related spending to a prohibition on spending involving express advocacy of the election or defeat of a clearly identified candidate or candidates . . . The Court has ruled that spending for issue advocacy, on the other hand, cannot be stopped.''); FEC v. Christian Action Network, 894 F. Supp. 946 (W.D. Va. 1995), aff'd per curiam, 92 F.3d 1178 (4th Cir. 1996) (''By creating a bright-line [express advocacy] rule, the Court ensured, to the degree possible, that individuals would know at what point their political speech would become subject to governmental regulation.''); FEC v. Survival Educ. Fund, Inc., 1994 WL 9658, at *3 (S.D. N.Y. Jan. 12, 1994), aff'd in part and rev'd in part on other grounds, 65 F.3d 285 (2d Cir. 1995) (''[E]xpressions of hostility to the positions of an official, implying that the official should not be reelected—even when the implication is quite clear—do not constitute the express advocacy . . .''); FEC v. Colorado Republican Fed. Campaign Comm., 839 F. Supp. 1448, 1456 (D. Colo. 1993), rev'd 59 F.3d 1015 (10th Cir. 1995), vacated and remanded on other grounds, 116 S. Ct. 2309 (1996) (''Trying to determine whether the surrounding circumstances, coupled with the implications of the advertisement, constitute 'express advocacy' leads to the type of semantic dilemma which the [Supreme] Court sought to avoid by adopting the bright-line rule.''); West Virginians For Life, Inc. v. Smith, 919 F. Supp. 954, 959 (S.D. W.Va. 1996) (''[Buckley and MCFL] adopted a bright-line rule for determining whether advocacy is express advocacy and therefore subject to regulation, or issue advocacy which may not be regulated.''); FEC v. NOW, 713 F. Supp. 428 (1989) (solicitation letters, which criticized candidates, were not express advocacy); FEC v. AFSCME, 471 F. Supp. 315, 317 (D. D.C. 1979) (''[A]lthough the poster includes a clearly identified candidate and may have tended to influence voting, it contains communication on a public issue widely debated during the campaign. As such, it is the type of political speech which is protected from regulation . . .'').
(Footnote 41 return)
James Bopp, Jr. served as lead counsel for plaintiffs.
(Footnote 42 return)
James Bopp, Jr. served as lead counsel for the plaintiffs in this case.
(Footnote 43 return)
James Bopp, Jr., served as lead counsel for plaintiffs.
(Footnote 44 return)
James Bopp, Jr. served as lead counsel for plaintiffs Minnesota Citizens Concerned for Life, Inc. and Jacqueline A. Schwitz.
(Footnote 45 return)
The Court also determined that IRLC was likely to succeed on the merits of its claim that 351 IAC 4.87 was unconstitutional, because it defined a political committee as including those political corporations that accept contributions of more than $500 per year, contrary to the Supreme Court's decision in MCFL. Williams, slip op. at 16.
(Footnote 46 return)
The Kansas Campaign Finance Act requires a receipts and expenditures report by persons other than a candidate or a candidate committee, or party or political committee, regarding the funding of political advertisements when the advertisements are considered ''contributions'' for a certain candidate. K.S.A. 21–4150. If the advertisement ''expressly advocates the nomination, election or defeat of a clearly identified candidate,'' then it is a ''contribution'' under K.S.A. 24–4143(e)(1)(B). The report must contain the name and address of each person from whom a contribution or in-kind contributions in excess of $50 was made. K.S.A. 24–4148(b)(2) & (8).
(Footnote 47 return)
James Bopp, Jr., served as lead counsel for plaintiffs.
(Footnote 48 return)
James Bopp, Jr., served as lead counsel for plaintiffs.
(Footnote 49 return)
After Linane moved outside Arkansas, the District Court granted plaintiffs' motion to substitute David Sloan for Linane. ARLSPAC I, at 1235.
(Footnote 50 return)
James Bopp, Jr. was lead counsel for plaintiffs.
(Footnote 51 return)
James Bopp, Jr., served as lead counsel for plaintiffs.
(Footnote 52 return)
Plaintiffs' later voluntarily dismissed this claim.
(Footnote 53 return)
James Bopp, Jr., was lead counsel for plaintiffs.
(Footnote 54 return)
James Bopp, Jr. filed an Amicus Curiae Brief in this case.
(Footnote 55 return)
James Bopp, Jr., served as lead counsel for plaintiffs.
(Footnote 56 return)
The District Court determined that NCRLPAC need only inform donors of its name and not tell them for whom the money will be used, and the State did not appeal that portion of the District Court's decision.
(Footnote 57 return)
This provision was invalidated in Maine Right to Life Committee v. FEC, 914 F.Supp. 8 (D. Me 1996), aff'd, 98 F.3d 1 (1st Cir. 1996), but the FEC continues its attempts to enforce it because the rule has not been repealed.
(Footnote 58 return)
For the purposes of clarity, the term ''disbursement'' will be used to denote the payment of money for a political communication. This term is preferable to the word ''expenditure'' because the latter is a legal term of art. Since the label ''expenditure'' carries with it certain legal consequences, its use can be misleading, particularly when the issue to be decided is whether a particular payment is an ''expenditure'' or a ''contribution.''
(Footnote 59 return)
As will be explained, the FEC has a mistaken idea of its power to regulate disbursements for communications which do not ''expressly advocate'' the election or defeat of a clearly identified candidate. The FEC cannot regulate them merely by labeling them ''contributions'' (as opposed to ''expenditures''). Rather, under Buckley, all disbursements for communications (whether deemed ''expenditures'' or ''contributions'') are protected by the ''express advocacy'' test. This is clear from the fact that the Buckley Court developed the ''express advocacy'' test to obviate the ''ambiguity'' of the phrase ''for the purpose of . . . influencing'' which appeared in the definitions of both ''contributions'' and ''expenditures.'' Buckley v. Valeo, 424 U.S. 1, 78–79 (1976). Therefore, under Buckley, a disbursement for a communication is immune from regulation unless it constitutes ''express advocacy.'' This is so whether or not it is coordinated with a candidate. Indeed, no disbursement for political speech can be regulated in the absence of a compelling governmental interest. As Buckley and its progeny make clear, there is no compelling interest in the regulation of issue advocacy. This follows ineluctably from the fact that issue advocacy does not result in the threat of quid pro quo corruption, the prevention of which is the only compelling interest for restricting campaign finances. Federal Election Commission v. National Conservative Political Action Committee, 470 U.S. 480, 496–97 (1985).
(Footnote 60 return)
FEC v. AFSCME, 471 F. Supp. 315 (D.D.C. 1979); FEC v. CLITRIM, 616 F.2d 45 (2d Cir. 1980); FEC v. Machinists Non-Partisan Political League, 655 F.2d 380 (D.C. Cir. 1981); FEC v. Phillips Publishing, 517 F. Supp. 1308 (D.D.C 1981); FEC v. Massachusetts Citizens for Life, 107 S. Ct. 616 (1986); FEC v. NOW, 713 F. Supp. 428 (D.D.C. 1989); FEC v. Survival Education Fund, 65 F.3d 285 (2nd Cir. 1995); FEC v. Christian Action Network, 894 F. Supp. 946 (W.D. Va. 1995), aff'd, 92 F.3d 1178 (4th Cir. 1996); FEC v. GOPAC, 871 F. Supp. 1466, 917 F. Supp. 851 (D.D.C. 1994); FEC v. Colorado Republican Federal Campaign Committee, 116 S. Ct. 2309 (1996).
(Footnote 61 return)
011 CFR 114.4(b)(5), invalidated in Faucher v. FEC, 928 F.2d 468 (1st Cir. 1991); 11 CFR 100.22, invalidated in Maine Right to Life Committee v. FEC, 914 F. Supp 8 (D. Me. 1996), aff'd, 98 F.3d 1 (1st Cir. 1996); 11 CFR 114.4(c)(4) & (5), invalidated in Clifton v. Federal Election Commission, 927 F. Supp. 493 (D. Me. 1996).
(Footnote 62 return)
An ''independent expenditure'' is a legal term of art which denotes a disbursement for an express advocacy communication which is not coordinated with a candidate or his campaign. See 2 U.S.C. §431(17).
(Footnote 63 return)
When a disbursement constitutes what might be called 'coordinated express advocacy,' the Buckley Court reasoned that it is the functional equivalent of a ''contribution'' to the candidate whom it favors and, therefore, may be constitutionally limited to the same extent as direct financial contributions or ''in-kind'' contributions. See Buckley, 424 U.S. at 46–47 and n.53.
(Footnote 64 return)
James Bopp, Jr., filed an Amicus Curiae Brief in this case.
(Footnote 65 return)
The Colorado Republican Court made clear that the advertisement at issue was an independent expenditure, i.e., express advocacy. Therefore, it would have been regulable had the Court found that it was not ''independent.''
(Footnote 66 return)
In Clifton v. Federal Election Commission, 927 F. Supp. 943 (D. Me. 1996), the District Court for the District of Maine (employing analysis similar to that subsequently used in Colorado Republican) invalidated a federal regulation which sought to treat ''expenditures occurring after contact with a candidate'' as ''contributions'' which, under the FECA, could be prohibited by corporations under 441b.