SPEAKERS CONTENTS INSERTS
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THE FIRST AMENDMENT AND RESTRICTIONS ON ISSUE ADVOCACY
THURSDAY, SEPTEMBER 18, 1997
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10 a.m. in room 2226, Rayburn House Office Building, Hon. Charles T. Canady [Chairman of the Subcommittee] presiding.
Present: Representatives Charles T. Canady, Henry J. Hyde, Bob Inglis, Ed Bryant, William L. Jenkins, Bob Goodlatte, Bob Barr, Asa Hutchinson, Robert C. Scott, Maxine Waters, John Conyers, Jr., Jerrold Nadler, Melvin L. Watt.
Also present: Kathryn Lehman, chief counsel; John Ladd, counsel; Keri Harrison, counsel; Brian Woolfolk, minority counsel; Brett Shogren, staff assistant.
OPENING STATEMENT OF CHAIRMAN CANADY
Mr. CANADY. The subcommittee will be in order. We are holding this hearing today because speech concerning who governs our Nation and how the Nation is governed is at the core of the protections of the First Amendment. In light of recent United States Supreme Court decisions, today we will consider the question of what limits, if any, can be placed on the type of speech that Americans value highly; that is, political speech which allows each of us to praise or criticize our government and those individuals who govern it.
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As the Supreme Court stated in the case of Buckley v. Valeo:
''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.''
In deciding the 1996 Colorado decision, Justice Kennedy once again reaffirmed ''that the First Amendment embodies a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open.'' It is my belief that the freedoms protected by the First Amendment are essential to democratic self-governance. These include freedom of religion, speech, expression, association, the right to petition the government for redress of grievances, and freedom of the press.
The Supreme Court first heard a challenge to the 1974 Amendments to the Federal Election Campaign Act, which attempted to regulate issue advocacy, in the landmark case of Buckley v. Valeo. What emerged from that case is the bright line test of express advocacy that has been a fixture of our First Amendment jurisprudence for over 20 years. Since that decision, the Supreme Court has never suggested that the express advocacy analysis is incorrect as a matter of constitutional law.
Once again, as I said at our hearing on ''Free Speech and Campaign Finance Reform'' in February of this year, the Committee on House Oversight has primary jurisdiction over the issue of campaign finance reform; however, I believe this subcommittee has a responsibility to consider the impact of various proposals on our Constitutionally protected freedoms.
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Today's witnesses will recount their experiences with state regulation of issue advocacy in last November's election. Moreover, our second panel will discuss the First Amendment implications of potential government regulation of the discussion of issues and legislative advocacy and the extent to which such political speech can be regulated under Buckley and its progeny.
I want to thank each of our witnesses for coming. I look forward to hearing the testimony from both panels. Now I would recognize Mr. Scott.
Mr. SCOTT. Thank you, Mr. Chairman, and I thank you for holding the hearing, particularly as we look at the Constitutional implications of several of the proposals before us, I particularly thank you because some of those implications are often overlooked as we consider much of the legislation that we consider.
Our hearing today addresses the problems associated with the way we currently define what constitutes express advocacy and issue advocacy and how such communications should be regulated. Express advocacy describes a communication to the public whose primary purpose is to advocate the election or defeat of a candidate. Groups engaging in express advocacy are subject to disclosure requirements and other regulations.
On the other hand, groups engaging in issue advocacy with the primary purpose of promoting a set of ideas or policies are not subject to regulation under existing campaign finance laws. Clearly the lack of regulatory requirements on issue advocacy makes it an attractive practice for groups wishing to maintain their tax exempt status and at the same time get their message out to the voters. But because the distinction between the two types of communications also is often more semantic than substance, there is significant room for abuse by groups wishing to have an impact on elections and preserve their immunity from regulation.
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In the landmark Buckley decision, the Supreme Court found that as a threshold matter, in a campaign context, monetary expenditures are a form of speech and are therefore subject to protection under the First Amendment. The Court held that only a substantial governmental interest could justify limitations in this area. In that vein, the Court ruled that only groups engaged in express advocacy would be subject to regulation under the Campaign Finance laws.
In doing so, the Court drew a distinction between express advocacy and issue advocacy, finding that ads which use the terms ''vote for,'' ''vote against,'' ''support,'' ''elect,'' or ''defeat'' are clearly express advocacy, thus subject to regulation, whereas the exact same ads in the middle of a campaign without the magic words are issue advocacy and totally unregulated. Over the years, the Federal Election Commission has made several efforts to regulate various issue advocacy groups from promulgating new rules to broaden the regulatory requirements for such groups.
Those of us who seek campaign finance reform agree that there are serious problems surrounding the distinction between what constitutes issue advocacy and what actually amounts to partisan political activity; however, clarifying the line may do us more harm than good and may go further than the Court and Buckley allows. Any efforts to impose more stringent regulations on issue advocacy will undoubtedly have a chilling effect on the exercise of free speech by many of the sponsoring organizations.
It is clear that this issue is one of many in the overall campaign finance debate, but the problem will not be solved by focussing on how or whether to clarify an arbitrary distinction set up by the Court in an effort to protect free speech, because although the magic words, in my judgment the magic words test is arbitrary, at least it is easily understood. We should be very careful of any change which infringes on free speech rights of individuals or organizations, particularly if regulation depends on subjective interpretation. Rather, in my view, we should be considering other alternatives to campaign finance reform that would eliminate the problems associated with campaign finance without stifling Constitutionally protected speech.
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I believe that public financing of political campaigns is one such alternative. If candidates are not forced to resort to outside sources for financing their campaigns, much of the confusion and corruption associated with financing will be eliminated.
Mr. Chairman, the magnitude of this dilemma should not be underestimated. This morning's Rol1 Call points out in an article that all of the federal candidates, President, U.S. Senate, Congress, must be at least a thousand candidates, spent an aggregate total of $400 million on TV ads last year. Just two dozen organizations spent $150 million on unregulated issue advocacy TV ads, 80 percent of them being attacks on named candidates which obviously had essentially the same partisan political effect as the candidate ads.
I look forward to hearing our witnesses and hope that we will have some useful suggestions so that we can proceed on the ongoing debate on campaign financing. I appreciate the witnesses, your time and preparation is greatly appreciated. Thank you, Mr. Chairman.
Mr. CANADY. Thank you, Mr. Scott. Representative Bryant.
Mr. BRYANT. Thank you, Mr. Chairman. I apologize for being just a few minutes late. Knowing your wisdom, I probably would want to associate myself with your remarks, and I certainly would want to with Mr. Scott's also. Let me commend both of you for agreeing to have these hearings. I think they will serve a useful purpose. I quickly would say that I think I have an opinion on this, but I am open. I really look forward to hearing, and if I am not here when someone testifies, reading the testimony of both panels today.
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I have concern, as many of my colleagues who came in in the 1994 class, with the ability of some outside groups, in essence unregulated and seems like in many cases unaccountable to spend tremendous sums of money to oppose a candidate. I have a colleague from Arizona, I think, who had some $2 million spent against him by unions primarily, to unseat him, and that was before the first penny was spent by his opponent.
I think maybe some effort there to control the voluntariness of that contribution, that expenditure under the Beck decision might be in order, but any time you start dealing with freedom of speech and First Amendment rights I have that concern, especially, and probably at this point in time would tend to oppose any types of regulations that would get into that area. But again, I am interested in hearing and reading the testimony and look forward to you gentlemen and subsequent panels sharing your thoughts with us today. Thank you.
Mr. CANADY. Thank you, Mr. Bryant. The gentleman from Arkansas, Mr. Hutchinson.
Mr. HUTCHINSON. Thank you, Mr. Chairman. At the outset, let me commend you for holding this hearing and for bringing Congressional attention to bear on the important issues of free speech and federal campaign laws. I think other committees should be conducting hearings on campaign finance reform, but it really should start with the Constitution Subcommittee because of the importance of the First Amendment.
I strongly believe that we should all be concerned about the Constitutional guarantees when discussing proposed changes in our laws. The rights of individuals in groups to express themselves freely is a hallmark of our democratic system. In fact, this country has a long history of issue advocacy. Our founding fathers even engaged in anonymous pamphleteering to advance their causes, and for that reason we should recognize the importance of it.
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It is also important for the public to know which groups are impacting elections through issue advocacy. I believe we should be looking at ways to increase the availability of information to the public, especially information regarding the amount of money that is spent on radio and television advertisements.
As co-chair of the Bipartisan Freshman Campaign Finance Reform Task Force, I had the privilege of presiding over a number of forums on this issue. We heard from Constitutional scholars and some of those in this room today, and based upon those forums and my own personal study of this issue, I believe that the courts have left issue advocacy open to limited disclosure without necessarily violating Constitutionally protected free speech rights.
I know there is disagreement in this room, and I look forward to hearing the testimony of the witnesses and engaging in questions to our witnesses. Mr. Chairman, again, I am delighted that we are holding these hearings, and I appreciate you providing the leadership to conduct this today. Thank you very much.
Mr. CANADY. Thank you, Mr. Hutchinson. We now will proceed to our first panel. On our first panel this morning we will first hear from James Buchen. Mr. Buchen is Senior Vice President of Wisconsin Manufacturers and Commerce, one of the groups compelled to cease broadcasting issue advocacy advertisements in Wisconsin in the last general election.
Next on this panel will be Steve Merican. Mr. Merican is President of Americans for Limited Terms, another of the Wisconsin issue advocacy groups affected by the restrictions on issue advocacy in Wisconsin.
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Next we will hear from George Dunst. Mr. Dunst serves as legal counsel to the Wisconsin State Elections Board, which is pursuing an enforcement action against the Wisconsin Manufacturers and Commerce.
Finally on our panel today will be James Bopp, Jr. Mr. Bopp appears today as attorney for Wisconsin Right To Life and National Right To Life. I want to thank each of you for being with us here this morning. I would ask that you do your best to summarize your testimony in no more than 5 minutes guided by the light here, and without objection your full written statements will be made a part of the permanent record of the hearing. We thank you for being with us and we will proceed now to Mr. Buchen.
STATEMENT OF JAMES A. BUCHEN, VICE PRESIDENT OF GOVERNMENT RELATIONS, WISCONSIN MANUFACTURERS AND COMMERCE
Mr. BUCHEN. Thank you, Mr. Chairman, members of the Committee. I greatly appreciate this opportunity to talk about our experience in Wisconsin with issue advocacy and campaign finance law. By way of introduction, I represent the Wisconsin Manufacturers and Commerce, which is a business association in the state that has about 4,600 members, primarily small businesses. They collectively employ about 500,000 people in the state, which is roughly 25 percent of the private sector workforce. We are a melding of the state Chamber of Commerce and the state Manufacturer's Association into one group.
About 4 years ago, we launched a property tax initiative in Wisconsin through a coalition of farm organizations, taxpayer groups and other small business associations. We came together because we were collectively concerned about high property taxes in our state, those property taxes being among the highest in the nation. They were high enough to be driving people off the farm, old people out of their homes, and certainly hurting small businesses' ability to compete.
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Our plan was to mobilize the general public to be involved in this debate and to put some pressure on our state legislature to do something about this issue. We were ultimately successful in that the legislature adopted and the governor signed a billion dollar property tax relief measure producing the largest property tax cut in Wisconsin history.
As a follow-up to that legislation, we sponsored a series of ads detailing how certain members of the legislature voted on that important measure. It was a major piece of public policy, probably the centerpiece of that legislative session, and we thought the public had a right to know members or how their elected representatives voted. At the same time we were concerned about the effect of the state election law. We felt constrained to go to the Elections Board staff with a sample script to have them review it to determine whether or not we would be running afoul of the election law if we engaged in such advertising.
We were aware of the express advocacy standard and felt that our ads fell well within the acceptable range. We provided this sample script to get a sense of where the Elections Board staff would come down on this issue. They essentially okayed our advertising, or advertising similar to what we ultimately ran, and we went forward.
A week into running the ads, the legislators who were the subject of the ads brought suit against us in various state courts throughout Wisconsin. Three separate actions that were brought, seeking injunctions to stop the airing of the ads. In a surprising and what I am convinced is an unconstitutional exercise of prior restraint, we were ordered off the air by these state courts. The ads were knocked off the air and we were silenced in our ability to talk about the voting record of these incumbent legislators.
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As of today, the injunctions against our speech still stand. We cannot run ads, the same ads or similar ads in the state of Wisconsin. This is a major concern to us because the state legislature is at impasse over our state budget. It is now three months late. The fiscal year has ended three months ago, and there are significant issues involving income taxes in dispute. But for these injunctions we would probably be on the air today talking to the public about the state budget and these income tax issues.
Following the election, the Elections Board, which is our election regulatory body, took up the of our advertising. They reviewed the ads and tried to determine whether in their view we were somehow in violation of state election law. In the process, they essentially ignored an opinion from our state Attorney General that was issued after the Buckley v. Valeo decision in 1976. They ignored the opinions of their legal staff concerning our ads. They ignored their own administrative rule which laid out the express advocacy standard in clear terms for them to follow, and instead directed the Attorney General to bring an enforcement action against us, and he has done that.
The frightening thing is that in Wisconsin our election law provides both civil and criminal penalties for violations of certain sections of the election law, including those which they think that we violated.
Another major concern we have about how this was handled in Wisconsin is that it smacks of selective enforcement. At the same time we ran ads, the Sierra Club ran ads, contrasting, the positions of incumbent legislators with those of challenging candidates. They were ultimately ordered off the air by circuit courts as we were, but when the Elections Board took up the complaints against them, no action was taken and they decided not to pursue enforcement.
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To summarize, we think that the First Amendment protects a broad range of speech. Probably the most important speech that it protects is that which is directed at public policy and speech that is critical of the government if necessary over important public policy issues, and while I understand the need for campaign regulation, as campaigning can be a messy business with charges and counter-charges, I do not think that campaign laws should be used as a weapon to silence critics of certain government officials if that is what is necessary.
It seems inconceivable to us that in America small business people and farmers can be denied their right to effectively speak out on issues that affect their ability to survive and stay in business, but that is really what happened in Wisconsin. If we have to go to the government and ask permission to speak on issues, to submit scripts for review and censorship by the government, then the First Amendment stands for nothing. Thank you.
[The prepared statement of Mr. Buchen follows:]
PREPARED STATEMENT OF JAMES A. BUCHEN, VICE PRESIDENT OF GOVERNMENT RELATIONS, WISCONSIN MANUFACTURERS AND COMMERCE
Thank you, Representative Canady and members of the Committee, for allowing me this opportunity to focus attention on what I believe to be a serious threat to free speech masquerading as campaign finance law.
I am James Buchen, Vice President of Government Relations for Wisconsin Manufacturers & Commerce (WMC), which is a statewide business group composed of some 4,600 companies throughout the state. Collectively our members employ approximately 500,000 people in Wisconsin, which is roughly 25% of the state's private sector workforce. The majority of our members are small businesses with less than 50 employees.
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Four years ago, we launched a statewide grassroots lobbying initiative aimed at reducing property taxes in Wisconsin. High property taxes were consistently identified as the number one issue of concern to homeowners and farmers, as well as business people. To convert this concern into legislative action, we ran a series of television and radio ads encouraging citizens to call or write their legislators and ask them to support the property tax relief measures then pending in the State Legislature.
This effort was ultimately successful, with the State Legislature and the Governor agreeing on a billion dollar property tax relief package that produced significant tax reductions for home owners, farmers, and commercial property owners alike.
Last fall as a follow-up to our successful grass roots initiative, we sponsored a series of television and radio ads, which described how certain members of the State Senate and Assembly voted on this critical property tax relief legislation. Prior to running the ads, we asked the Elections Board staff to review sample scripts to be sure that we did not run afoul of the state's campaign finance laws. The staff responded in writing that, in their view, the scripts amounted to constitutionally protected issue advocacy, and could not be regulated under campaign finance law.
Shortly after the ads began to air, some of the legislators whose voting records were characterized in the ads, went to court seeking to enjoin any further broadcasts of these ads. In a surprising, and probably unconstitutional, exercise of prior restraint, three separate courts ordered us off the air, citing failure to comply with certain election regulations. Among other things, Wisconsin law prohibits the use of corporate money for ''political purposes.''
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After the election, the State Elections Board considered the allegations of campaign finance law violations, and while acknowledging the existence of Buckley v. Valeo and the express advocacy standard, nevertheless recommended that the State Attorney General commence an enforcement action against us. Wisconsin election law provides for both civil and criminal penalties for violating the corporate spending prohibitions.
Ironically, the Elections Board chose not to pursue an enforcement action against the Sierra Club, which had also been ordered off the air prior to the elections for running ads contrasting the position of various candidates on environmental issues. In addition, the decision to prosecute WMC and not the Sierra Club, was made in a closed meeting excluding both the press and the general public.
We subsequently brought suit against the State Elections Board in federal court for violating our constitutional right to free speech. Neither the state nor federal courts have yet to render a decision on the merits. In the meantime, however, we are under a court order not to run ''similar ads'' that name the politicians involved in the original complaint. This is particularly troubling in light of the fact that one of the legislators is a key figure in the ongoing stalemate over the state budget. But for the injunction, we would probably be on the air today.
What we have in Wisconsin is an attempt by certain elected officials and the Election Board to limit the free speech rights of the business community under the color of campaign finance law. The Supreme Court has repeatedly said that groups and individuals cannot be punished for exercising their First Amendment right to publicize their views on issues and candidates. In Buckley v. Valeo, the Supreme Court pointed out that political speech lies at the core of the First Amendment:
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Discussion of public issues and debate on the qualifications of candidates are integral to the operations of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expressions in order ''to assure the unfettered interchange of ideas for the bringing about of the political and social changes desired by the people.'' Buckley v. Valeo, 424 U.S. 14 (1976).
The point of the First Amendment is to protect the ability of citizens, individually and collectively, to speak out on issues that matter to them, and to criticize the government or elected officials if necessary. If you have to ask the government's permission before you can criticize government officials, then the First Amendment stands for nothing.
Campaign finance laws and proposed reforms are often cited as necessary to avoid ''corruption or the appearance of corruption'' in the political process. I would suggest that nothing is more likely to corrupt the political process than a set of speech regulations that ensure that the only people allowed to speak about the records of politicians, are the politicians themselves.
Fortunately the Constitution prevails over legislative enactments that contradict it's plain meaning. Specifically the First Amendment says:
Congress shall make no law . . . abridging the freedom of speech . . .
Based on the plain meaning and intent of the First Amendment, the U. S. Supreme Court and other federal courts have struck down every argument or characterization that could conceivably be marshaled to allow regulation of issue advocacy under campaign finance law:
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An advertisements allegedly partisan tone is irrelevant: ''As narrowed, [the federal statute] does not reach all partisan discussion for it only requires disclosure of those expenditures that expressly advocate a particular election result.'' Buckley, 424 U.S. at 80; see Faucher, 928 F.2d at 472;
An advertisements' cost is irrelevant: only ''the actual language used in an advertisement'' is at issue, not how many people hear it. Christian Action Network, 894 F. Supp. at 952;
An advertisements' proximity to an election is irrelevant: ''Indeed, [t]he right to speak out at election time is one of the most zealously protected under the Constitution.'' Central Long Island Tax Reform Immediately Committee, 616 F.2d at 53;
An advertisements alleged implication of electoral advocacy is irrelevant: ''The Court [in Buckley] seems to have been quite serious in limiting FEC enforcement to express advocacy, with examples of words that directly fit that term.'' Maine Right to Life Committee, 914 F. Supp. at 12 (emphasis in original); see Central Long Island Tax Reform Immediately Committee, 616 F.2d at 53 (''the words 'expressly advocating' means [sic] exactly what they say''); and,
An advertisements allegedly negative tone is irrelevant: ''[T]here is no requirement that issue advocacy be congenial or non-inflammatory.'' Christian Action Network, 894 F. Supp. at 955.
In conclusion, free speech protections should not be taken lightly. They are essential to preserving the rest of our constitutional rights. We simply cannot allow campaign finance, or any other reform, to be used as an excuse for trampling on our basic constitutional rights.
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INSERT OFFSET RING FOLIOS 1 TO 5 HERE
Mr. CANADY. Thank you. Mr. Merican.
STATEMENT OF STEVEN MERICAN, PRESIDENT OF AMERICANS FOR LIMITED TERMS
Mr. MERICAN. Mr. Chairman, Mr. Scott, Chairman Hyde, ladies and gentlemen, thank you for the opportunity to address you today concerning what we consider to be an attack made by the Wisconsin Board of Elections on our First Amendment rights to free speech, free unregulated political speech, and to unregulated freedom of association. As you all pointed out, the issue that we are focussing on involves the concepts of issue advocacy and express advocacy, and really the competing interests of those who want to restrict speech and debate, and on the other hand, those of us who believe that under our Constitution, speech must be primary.
The background facts to our situation, ALT's situation, is not far different from what you just heard from Mr. Buchen with respect to his organization, so I will not go into all of the details. I will just briefly summarize that in November 1995, Americans for Limited Terms ran radio ads and did a direct mail campaign with respect to one of the candidates for state office position on term limits. That is David Travis.
Travis was and still is the incumbent representative from I believe it is the 18th district in Wisconsin. Well, Travis apparently did not want the public to know what his position was on term limits so he ran into court and without notice to us got an injunction, a restraining order which prevented us from running our ads. I think that alone is extraordinary. ALT has done issue discussion ads throughout the country and so far as I know has never been involved in any kind of litigation of this kind, and I think that is because what we do generally is accepted to be in keeping with the First Amendment and the Supreme Court interpretation of the First Amendment.
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Well, Travis was not satisfied with his restraining order, so he also filed a complaint with the Wisconsin Board of Elections. He alleged that our ads violated Wisconsin law in that we made disbursements for political purposes and did not register with the Board. The Board then took up Mr. Travis' banner, and without benefit of an evidentiary hearing, ruled that ALT's ads were for political purposes and that we therefore must register with the Board and must disclose who our contributors are.
Now, because we feel so absolutely right about this and because we feel the Constitutional principles and issues are so important, we have refused to comply with the Wisconsin Board's order. I believe that legally we have every right to keep our donor lists private, and ethically we would be violating the rights and trust placed in us by our donors if we comply with the ruling. So thus we ended up in litigation with the Wisconsin Board of Elections.
There are actually three cases pending, two of which are really at issue here. There is one in Federal Court, where there are now pending motions that would take care of the matter on the merits, and there is one in state court. The one in state court is the enforcement action by the Wisconsin Board of Elections. I believe we are right under the First Amendment which is clearly primary here. ''Congress shall pass no law abridging the right to free speech.''
Buckley v. Valeo as it interprets that amendment says that as long as we eschew expenditures in express terms or that in express terms advocate the election or defeat of a clearly identified candidate, we have not engaged in express advocacy. And issue advocacy, according to Buckley, has an absolute Constitutional shield from regulation.
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Another Constitutional principle that I think is equally as important as Buckley v. Valeo arises from a 1958 case I believe it is, NAACP v. Alabama. That is the case that ruled that the NAACP did not have to turn over its membership list to the state, and the court there recognized that freedom of association was very closely tied to the right to privacy of those donor lists so that you cannot have one without the other, and that disclosing those membership lists would violate the First Amendment.
I think all of this is of course tied to many of the bills that are pending with respect to campaign finance reform and particularly McCain-Feingold. I have analyzed that bill with respect to how it would redefine issue advocacy and express advocacy, and some of the other bills are much in keeping with that, and I think those bills generally suffer from the same Constitutional defect as the defect in what the Board of Elections is doing.
I understand, just to summarize, that it is difficult for you when you are confronted with these issue advocacy ads in your campaign, but the way to level the playing field is not through a legislative amendment to the First Amendment or trying to restrict speech. You cannot do it because it is unconstitutional. The Supreme Court has said so. And you should not do it even if you could because it is a bad idea because speech, particularly political speech, ought to be our primary concern. Thank you.
[The prepared statement of Mr. Merican follows:]
PREPARED STATEMENT OF STEVEN MERICAN, PRESIDENT OF AMERICANS FOR LIMITED TERMS
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Mr. Chairman, Mr. Scott, Chairman Hyde, ladies and gentlemen, thank you for the opportunity to speak to you today concerning the rising threat to First Amendment freedom. At no time in our nation's history has the pressure for de facto repeal of the Right to Free Speech and Free Association been greater or more intense than it is today.
We are here to discuss the actions of the State of Wisconsin taken against private organizations seeking to exercise their rights of free speech. We are also here to discuss the potential impact an extension of those dangerous and unconstitutional policies would have on our nation as a whole if enacted by this or a future Congress.
In Wisconsin during 1996 Americans for Limited Terms engaged in issue discussion concerning the positions of candidates for the State Legislature on their positions regarding the issue of term limits. All materials that engaged in this issue discussion advocated a position on the issue of term limits, never a position favoring one candidate over another. There was one goal: to use the power of public opinion to convince all candidates to support term limits.
The issue discussion effort was conducted by direct mail communications to citizens, phone banks and radio advertisements. All of these communications called on citizens to encourage all candidates to take a public position in favor of term limits. Nothing more, nothing less.
These actions were pure political speech. They did not seek to advocate the election or defeat of any candidate. They had as their sole purpose the advancement and promotion of a political idea. And yet, powerful elected officials in Wisconsin and subsequently the State itself employed every means at their disposal to silence our voice and subject us to a full range of administrative harassment. Now we have been forced into costly litigation to defend a forfeiture action brought by the state of Wisconsin and to vindicate our First Amendment rights, which the Supreme Court unequivocally enunciated 40 years ago and which have been upheld consistently ever since.
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Our Wisconsin experience is but one small battle in a struggle that is raging across America, a battle between those who seek to limit political speech and free trade in political ideas, and those who seek to preserve, defend and exercise the freedoms enshrined in the First Amendment.
This battle revolves around two main questions; what exactly constitutes ''express advocacy'' as established by the U.S. Supreme Court in Buckley v. Valeo and what are the rights of the individuals and organizations that seek to exercise their right to issue discussion.
First, the Supreme Court established in Buckley that individuals, and organizations could engage in a public discussion of issues free of regulation under the Federal Elections Campaign Act. The Court acknowledged that such discussion could have a political impact, but, rightfully drew the line of ''express advocacy'' as the divide between speech that may be regulated and speech that retained unconditional First Amendment protection.
The Federal Elections Commission has refused to accept this ruling. And also, in our case, the Wisconsin Board of Elections seeks to substitute its political agenda for the wisdom of the Supreme Court. Ever since Buckley was handed down, the FEC and its agents and apologists have sought to broaden the definition of express advocacy to include protected speech. The Commission has filed dozens of legal actions against organizations engaged in issue discussion attempting to get a court—any court—to agree with their view. Repeatedly the courts have rejected their thinly disguised assaults on Buckley.
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And yet, tax dollars continue to be used by the Commission to attack organizations looking to exercise their First Amendment rights. The Wisconsin authorities have done nothing more than follow the lead of their model, the FEC. Until Congress reins in this rogue agency and forces it to abide by the law and the Constitution, other state and local functionaries will continue to follow their example. After all, the mere threat of litigation is enough to chill this most precious constitutional right.
Secondly, the issue before Congress today is whether or not individuals and organizations engaged in issue discussion should be regulated, required to disclose members, contributors and to submit to the authority of the Federal Elections Commission.
The question of disclosure is primary. The stated goal of disclosure to the FEC is to prevent the appearance of corruption of the election process. This is a red herring. How can the electoral process be corrupted by the free exchange of ideas? Since, by definition, these discussions do not advocate the election or defeat of a candidate, what is the ''compelling governmental interest'' in shutting off debate on issues that might otherwise not be discussed? In fact, there is no governmental interest in stifling debate. Those who favor regulation of political discussion tend to be politicians who want to run away from their records and positions.
The Supreme Court in NAACP v. Alabama set the rule on this matter. The basis of NAACP was an attempt by the State of Alabama to force the Association to disclose their members in order to conduct business in the state. The Court ruled that a government must meet a test of strict scrutiny before restricting free association and free speech rights. Clearly this test is not met in this instance.
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The Court could not have been clearer. In NAACP v. Alabama the majority held:
''It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as the forms of governmental action in the cases above were thought likely to produce upon the particular constitutional rights there involved. The Court has recognized the vital relationship between freedom to associate and privacy in one's associations. When referring to the varied forms of governmental action which might interfere with freedom of assembly, it said in American Communications Association v. Douds: 'a requirement that adherents of particular religious faiths or political parties wear identifying arm-bands for example is obviously of this nature.'
Compelled disclosure of membership in an organization engaged in advocacy of particular beliefs is of the same order. Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.''
There can be no question that required disclosure of members and supporters of groups engaged in issue discussion has but one goal, to intimidate people of dissident beliefs from freely associating to advance those beliefs. There can also be no question of who the beneficiaries of such intimidation will be; current office holders and those loosely defined as the existing political class.
This is obviously true since the public discussion of ideas opposed by those in positions of power are the only ideas that would subject an individual to the threat of retaliation. For those who contend that government in the United States does not engage in intimidation of those with whom it disagrees, I would refer them to the IRS investigation of the opponents of the Nixon Administration two decades ago. I would also refer them to the current IRS action against Mrs. Paula Jones of Arkansas who has a legal action pending against the President. The situation in Wisconsin is the exemplar for this kind of abuse. The Wisconsin Board of Elections found that three organizations that ran issue advocacy ads violated the Wisconsin disclosure requirements—Americans for Limited Terms, Wisconsin Manufacturers & Commerce, and the Sierra Club. Yet, the Board instituted forfeiture actions against only two of us. Why doesn't the Board seek a penalty against the Sierra Club? One can safely surmise because the Sierra Club takes positions with which the board members are sympathetic. But apparently they don't like term limits, so they don't think twice about suing and penalizing us.
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So, are we to believe that people in power will not use that power to advance their own self-interests? The Founding Fathers certainly believed they would and the Supreme Court agrees. What has so drastically changed in human nature that we are now to believe otherwise?
Debate of political issues, free from bureaucratic and legislative regulation, is central to the First Amendment. If the regulators win this battle, political dissent will be driven underground as it was in other societies that attempted to control what people read, heard and thought. And once underground, history teaches us that this dissent grows and festers until the entire body politic becomes infected and dies. In our lifetimes we have witnessed the starkest example of this truth in the former Soviet Union. Dissent could not be stopped even with an army of control agents. Free expression won out despite the massive effort in history to kill it. The same will be true here.
Mr. Chairman, the experience of Americans for Limited Terms in Wisconsin is but one small example of the much larger threat to our freedom. I strongly urge all members of this Committee and all members of Congress to resist those who would chill our First Amendment rights and embrace the free trade of ideas as strongly as you have embraced the free trade of goods and services.
Mr. CANADY. Mr. Dunst.
STATEMENT OF GEORGE A. DUNST, COUNSEL, WISCONSIN STATE ELECTIONS BOARD
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Mr. DUNST. Thank you, Mr. Chairman. I am George Dunst. I am Counsel for the State Elections Board, or at least I was when I came here this morning. I hope nothing I say today changes that fact.
Before beginning my remarks, I would like to thank the members of the Subcommittee and its counsel John Ladd for the opportunity and the invitation to speak here today. The subject matter, regulation of issue advocacy and issue advocacy groups, is a vital one and one that is near and dear to the hearts of the members of the Elections Board as one can appreciate from the previous two speakers, and also to its counsel, myself.
Before relating the events that led to the Wisconsin Elections Board's experience with the influence of issue advocacy groups on candidate elections and the Elections Board's attempts to regulate that influence, I must preface my commentary with a caveat that although I appear here as counsel to the State Elections Board of Wisconsin, the remarks and views expressed are those of the author and not those of the Elections Board or those of any of its eight members. I do not know if I should stop at this point, but I will continue.
More importantly, I do have to make a retraction in my printed comments. Trial counsel for the Elections Board regarding the two matters just discussed expressed a great deal of concern about any commentary on the merits and I never intended anything in my printed remarks to be any kind of commentary on the merits of that litigation, and specifically on page four of my printed remarks in the last paragraph, first sentence, to the extent that that somehow might suggest a commentary on the merits of the litigation, I withdraw and retract it.
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Now, with that housecleaning done, to summarize the situation in which Wisconsin, its candidates for office, and its Elections Board found themselves in last fall's and to a lesser extent this spring's elections, various advocacy groups, at least three last fall and one this spring, spent thousands or even hundreds of thousands of dollars to convey a specific message about a clearly identified candidate or candidates.
Because those groups believe, they say, that they had not used language of express advocacy even though they had managed to convey a powerful message about the candidate either in the superlative or in the pejorative, they did not register with the State Elections Board, nor did they otherwise comply with Wisconsin's campaign finance reporting requirements. What that situation mean to Wisconsin's elections and its candidates for office is as follows: Unregistered groups raising undisclosed amounts of money from undisclosed sources in contributions of an undisclosed and unlimited nature were enabled to engage in expenditures of undisclosed and unlimited amounts of money to convey publicly a specific message, positive or negative, about clearly identified candidates, and in the case of this spring's activity, not the fall, even the source of that message went undisclosed.
Given the foregoing circumstances, what is the problem? Well, the problem is that many of the subjects of those messages and expenditures were required to and did play by a different set of rules. Candidates and their committees and the political parties that support them were playing by the campaign finance rules set forth in Chapter 11 of the Wisconsin Statutes, patterned after the rules established by the Federal Election Campaign Act for federal candidates.
Those rules require disclosure of all of the important pieces of information that are undisclosed or went undisclosed by issue advocacy groups, and those rules also set limits and in some extent prohibitions on the contributions to the candidates and even to the political parties. The reason that issue advocacy groups were playing by a different set of rules than the candidates and the political parties, or for that matter any other registrant with the State Elections Board, is the United States Supreme Court decision in Buckley v. Valeo.
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That decision says or means that as long as the issue advocacy groups do not expressly advocate the election or defeat of the clearly identified candidate who is the subject of their message, the interest of the candidate and of the American people in a fair election is adequately protected. The balance between the right of those groups to freely associate, to speak freely, with the right of the people and the candidates to an election that is free from undue influence is being maintained.
To make clear, the court thought, what the standard express advocacy meant so that all would understand, the court annotated its decision with footnote 52 which says that the so-called magic words, ''for or against, elect or defeat, support or oppose'' or words equivalent thereto must be used.
The question for the people by their duly elected representatives is is that standard, express advocacy, as delineated or annotated by footnote 52, adequate protection of the rights or interests of the people and their candidates in fair elections and ultimately adequate protection of the people's confidence in their government in the election and in the leadership elected, is the standard express advocacy a substantial enough restriction on advocacy groups' influence over elections to render it an adequate protection to the election process and to the candidates in the election.
It seems to me that if the standard is adequate, that is the end of discussion. If it is not, then one has to consider what alternatives are available, and I have set forth in my remarks what I think are the four, and they are to amend the Constitution—and we have urged in our remarks that that not be the case—change the membership of the United States Supreme Court—that is not available either—then either change the United States Supreme Court's mind or enact remedial legislation that qualifies for Buckley. Thank you.
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[The prepared statement of Mr. Dunst follows:]
PREPARED STATEMENT OF GEORGE A. DUNST, COUNSEL, WISCONSIN STATE ELECTIONS BOARD
Before relating the events that led to the Wisconsin Elections Board's experience with the influence of issue advocacy groups on candidate elections and the Elections Board's attempts to regulate that influence, I must preface my commentary with the caveat that, although I appear here as counsel to the State Elections Board of Wisconsin, the remarks and views expressed are those of the author and not those of the Elections Board or those of any of its eight members. It was suggested that I simply relate the story of the Elections Board's involvement with regulation of issue advocacy; so what follows is that story.
Although the Elections Board's confrontation (for want of a better word) with issue advocacy regulation began with communications disseminated in the 1996 Fall election by three organizations, (Wisconsin Manufacturers & Commerce Issues Mobilization Council, Inc.; Americans for Limited Terms, Inc.; and the Sierra Club), the story really began with an earlier 1996 election: the recall election for Wisconsin State Senator George Petak in June of 1996. Although the recall election had been initiated by a Racine, Wisconsin local citizens group disturbed by Senator Petak's pivotal vote on the Milwaukee Brewers stadium issue, the election garnered special interest and attention because Senator Petak's seat gave the Republican Party its 17–16 majority in the Wisconsin Senate. And, in fact, the signatures that were instrumental in putting the recall drive over the top had been gathered by circulators paid by the Democratic Party of Wisconsin.
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Apparently more than just the political parties were interested in that majority control because a month or so before the June 4, 1996 election the Midwest Representative for the local Sierra Club chapter in Madison, (Brett D. Hulsey), contacted me about pieces of literature or radio ads the chapter planned to distribute or publish in connection with the recall election. The chapter wanted me to review the text to determine whether it could be communicated by an organization that was NOT registered with the State Elections Board for purposes of influencing the election or defeat of clearly identified candidates. What the group was asking was whether any of the pieces crossed the express advocacy threshold thereby triggering a registration and reporting requirement with which the group could not comply.
Essentially, the pieces asked the voters of the 21st State Senate District which candidate had the best record of protecting the environment and which candidate could be expected to support that protection in the future. One of the pieces was a voter scorecard showing the candidates' positions on specific environmental legislation or issues. A draft of the proposed scorecard was faxed to me at the Board's offices. While the draft was still warm in my hand, a representative of the Republican Party caucus called me and requested, under Wisconsin's Open Records Law, a copy of that draft. That was my first clue that not only weren't we in Kansas, anymore, we weren't in Shangri-La, either.
In reviewing the communications, I suggested revisions that would eliminate language that might be construed to urge the reader to take action that could be no other than to vote one way or the other. I authored an informal opinion that, other than those revisions, the texts did not contain language that would engender a registration and reporting requirement because the language did not expressly advocate the election or defeat of a clearly identified candidate, (within the meaning of the First Amendment to the U.S. Constitution as interpreted by the U.S. Supreme Court in Buckley v. Valeo, 424 U.S.1 (1976). The Sierra Club made the revisions and published the communications. Because no one filed a complaint with the Elections Board about the communications, the Elections Board could not formally review whether the Sierra Club had complied with Wisconsin's campaign finance law.
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Ultimately, George Petak lost the election and the Democratic Party regained a majority in the Wisconsin State Senate. What impact, if any, the Sierra Club's activities had on the election is a matter of conjecture. Most pundits would speculate that his change of vote (if not a change of heart and mind) on the funding of the Milwaukee Brewers Stadium had the political effect of ''falling on his own sword,'' (good for war heroes, perhaps, but bad for candidates); and had more impact on the election than did the activity of the Sierra Club. Also, the movement of money from Washington D.C., to Racine, Wisconsin, through a committee called the Democratic Legislative Campaign Committee, to a Wisconsin PAC known as Wisconsin 2000, may have had more effect on the recall election than did the activity of the Sierra Club. But the Sierra Club's activity set a precedent that was to be followed, and expanded upon, in Fall 1996.
Every two years, in the general (or, Fall) election, Wisconsin elects all of its representatives to its Assembly and elects 16 or 17, (depending on the year), of the 33 senators in the Wisconsin State Senate. Thus, the 1996 general election and the Sierra Club precedent offered fertile ground for activity by those groups who believed that some candidates at that election possessed right or wrong views on issues vital to those groups and, more importantly, who believed that that information should be shared with the public. Predictably, the Sierra Club came back to the Elections Board for an opinion on whether communications similar to those run in the ''Petak campaign'' could be run in the general election campaign with respect to a number of candidates. As the Elections Board's counsel, I offered the opinion that they could as long as they continued to refrain from words of express advocacy regarding any clearly identified candidate. The Sierra Club then spent over $20,000 conveying its message regarding three Assembly races. The text(s) of its message were similar to those employed in the Petak campaign.
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Another group, Wisconsin Manufacturers and Commerce Issues Mobilization Council, Inc., (WMC hereafter), having become familiar with the Board's staff's approval of the Sierra Club's activities, also came to the Board for an opinion that its proposed text(s) of communications regarding candidates was entitled or deserving of the same approbation. This time, the Board's Executive Director, (Kevin J. Kennedy) weighed in with an opinion:
The text of the three ads has been reviewed by our staff counsel and me. There are no terms of express advocacy contained in the communications. The only call to direct action implores listeners to contact a named state senator who is the subject of criticism for his/her legislative positions. There are no references made to the election or to voting, although the subject matter of the ads involve issues that are clearly part of several legislative campaigns this fall.
It is the opinion of the Elections Board staff, that these communications are not subject to regulation under Wisconsin's campaign disclosure law, although they do raise significant questions concerning the extent of the issue advocacy exclusion. The timing of the broadcast of the ads, in the midst of a political campaign, could raise the suggestion that these are essentially candidate advocacy ads, since they do identify an individual who is on the ballot for the fall election and urge listeners to take action related to the candidate's stand on particular issues.
Because the opinion was not an unequivocal endorsement of the proposed text(s), WMC asked for a formal opinion of the Elections Board at the Board's next meeting. At that meeting the members of the Elections Board declined to give a formal opinion and put WMC on notice that if it engaged in this activity it did so at its own risk. WMC weighed that risk and chose to engage in a campaign of radio and television ads and direct mail literature in which it criticized the positions of at least eight candidates for the Wisconsin Assembly or Senate. According to WMC, it spent over $400,000 in this ''issue advocacy'' campaign. None of WMC's communications urged voters to vote for or against a particular candidate. Generally, the messages criticized the target candidate's views or record and urged the reader or listener to contact that candidate and tell him/her to change his position.
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A third group, Americans for Limited Terms, Inc., (hereafter ALTI), also made their presence known in the election by conducting a campaign against State Representative Dave Travis who, they said, had not taken the ''pledge'' to limit the number of terms to which a state legislator could be elected. ALTI spent over $7,000 on radio ads and mailings telling its listeners or readers that the people '' would not get the term limits they want with representatives like Dave Travis refusing to vote for term limits;'' and telling them:
So, call Travis today. Tell him to change his mind. Remind him the idea is that the legislature represents the views of the people.
Tell him it shouldn't take a two-by-four, or even radio ads, to get our representatives to do the will of the people. It shouldn't, but with Dave Travis it has.
Confident that the ads and mailings did not engender a registration and reporting requirement—because nothing in their text urged the reader or listener to vote for or against anyone—ALTI did not register with the State Elections Board; did not ask the Board for an opinion on the exclusion of the messages from regulation; but did identify itself as the source of the messages.
Formal complaints were filed with the Wisconsin State Elections Board against all three organizations by a variety of complainants. Because the Elections Board was not able to act on those complaints before the election, the complainants also went into various Wisconsin circuit courts seeking injunctive relief under a little-used Wisconsin Statute that enabled Wisconsin electors to obtain such relief if the Elections Board had not acted. Circuit courts in Dane County and Milwaukee County, Wisconsin granted injunctive relief against WMC, finding probability that the complainant could succeed on the merits by showing that WMC's communications had expressly advocated the election or defeat of a clearly identified candidate. The other circuit courts then deferred, in one form or another, to the decisions in Dane County and Milwaukee County and ordered a halt to radio and television ads pending an ultimate resolution by the Elections Board or by appeal of those two decisions.
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At the November 5, 1996 election, some of the candidates who had been the subject of these ''issue advocacy'' activities lost and some won, the latter including Representative Travis who had been the target of both WMC and ALTI. After the election, the Elections Board proceeded to undertake consideration of the complaints that were still pending against the three issue advocacy groups. In a preliminary ruling, the Board found that the standard that was required, (by the Board's own rule, ElBd 1.28 and by an opinion of the Wisconsin Attorney General and, ultimately by decisions of the U.S. Supreme Court), to be applied to the groups' activities was whether any or all of the groups had expressly advocated the election or defeat of a clearly identified candidate within the meaning of the First Amendment to the U.S. Constitution as interpreted and applied by the U.S. Supreme Court. On March 13, 1996, the Elections Board found that each of the three groups had spent money for the purpose of expressly advocating the election or defeat of clearly identified candidates and ordered each group to comply with Wisconsin's registration and reporting requirements.
Although the groups had made disclosure of their spending, they were not prepared to disclose the names of their contributors and the amounts of each contributor's contribution. Before the Elections Board could commence a forfeiture action, both WMC and ALTI commenced actions in federal district court for the Western District of Wisconsin. That action is pending on a motion for abstention based on the Board's having commenced (in the interim) an action in Dane County Circuit Court to enforce the Board's order that ALTI and WMC comply with Wisconsin's campaign finance laws. (The Sierra Club is not part of any of these actions because it did not want to litigate and because it attempted to comply as much as it could in showing that the money used in Wisconsin did not include any prohibited contributions and may not have included any individual contribution great enough to require disclosure of the contributor's name. It and the Board agreed to await the decision in the WMC/ALTI litigation to decide on any further compliance requirements. That is where the matter stands today.
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The Elections Board had reached a decision, but it did not do so without an uncomfortable struggle and it is not overconfident in the prospects for the success of that decision on appeal if its decision reaches either the U.S. Supreme Court or even the 7th Circuit U.S. Court of Appeals—and if either of those courts applies the Buckley decision, and, particularly, Footnote 52 of that decision, as the courts have applied that decision in the past. The predicament faced by the Board's members was that the majority felt that the intent of these groups was to influence voting at a Wisconsin election as much as any registrant who had complied with Wisconsin's campaign finance disclosure and reporting requirements had intended; that the effect of the groups' activities was to influence voting as much as any registrant's; but that the disclosure, limits and prohibitions that are applicable to any registrant are not applicable to these groups if the express advocacy test is given its usual restrictive interpretation. The dilemma that the Board's Chair and Executive Director wanted me to convey to this committee—the dilemma that is faced by Wisconsin and by any other state that attempts to regulate issue advocacy—is that in these circumstances everyone seems to think they know what is really going on, but, under the present law regulatory agencies seem to be unable to do anything about it.
It should be pointed out that the Board reached its result notwithstanding an opinion from its counsel that all three groups had scrupulously (if that's the right word) avoided—in all of their communications—words like ''vote for or vote against'' or ''elect or defeat'' or any verbal equivalent thereof. (A copy of counsel's memorandum opinion is appended to these remarks.) A majority of the Board's members felt that even without those ''magic words,' the message of ''elect or defeat'' had been intended and conveyed and, therefore, the author(s) of that message ought to be subject to regulation as if they had used those ''magic words.''
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If it is true, as appears to be the case, that the First Amendment and the Buckley decision (as it has been applied by the U.S. Supreme Court and the federal courts), limit the ability of the federal government or the states to regulate issue advocacy to the use of language which expressly advocates the election or defeat of a clearly identified candidate; and it is further true that the express advocacy standard means that such language must employ the words ''vote for or against'' or ''support or defeat'' or verbal equivalents thereof; and, finally, if it is true that the people, by their duly elected Congress, seek to change those conditions, the choices or alternatives available to the people seem clear:
1. Change the U.S. Supreme Court; i.e., its membership. Because this choice is not available for a considerable period of time its discussion or consideration is superfluous.
2. Change the Court's mind, or, at least, its opinion and enact legislation that does pass constitutional muster.
3. Amend the Constitution to empower Congress to regulate issue advocacy notwithstanding the First Amendment; i.e., override the Court's application of the First Amendment to issue advocacy in connection with candidate elections.
THE CONSTITUTION SHOULD NOT BE AMENDED
In a world where theocratic fundamentalism imposes severe consequences on basic forms of individual expression; where political dissidents have been crushed by tanks in Tian Anmen Square and where persons who express opposition to a ruling government in South America have been made to disappear, this country, the bastion of individual liberty, should not make even the faintest nod in that direction by any diminution of freedom's bulwark: the First Amendment.
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The question that has to be asked is whether the real reason that amendment to the constitution is being proposed is because the influence of issue advocacy on the election of candidates has reached crisis proportions, or because frustration with the inability to change the membership of the Supreme Court and the inability to change their collective mind has reached crisis proportions in the minds of a segment of our society, particularly those who would be candidates. Amending the Constitution to circumvent the Supreme Court and particularly the court's decision in Buckley, gives triumph to those who would argue that the Court or its decision is out-of-date, out-of-touch and, now, out-of-time. But there are reasons why our government consists of three branches, not two; and those reasons are as fresh today as they were over two hundred years ago and they still apply as cogently as they did at other times in our history when the Court or its decisions were seen as an obstacle to a contemporary agenda. (See President Franklin Roosevelt and ''court-packing'' or the ''Impeach Earl Warren'' clamor.)
The danger in amending the constitution to address the problem of ''over-reaching'' issue advocacy (or almost any other problem) is that all that the republic ends up with is an amendment to the constitution, not a solution to the problem; the amendment doesn't provide better candidates, fairer contests or even cheaper elections. The amendment can't predict or prevent the kind of mischief that may be created in its name. If it seems that the express advocacy test as articulated by the Supreme Court is too thin a reed on which to pin the fairness of political competition, that may be because the Court was aware that other First Amendment interests were at stake, too—besides the unfairness of candidates competing with unregulated advocacy groups. Those interests included the anonymity rights described in McIntyre v. Ohio Election Commission 514 U.S.—(1995); the privacy rights and the right to be free from reprisal that may result from disclosure discussed in Wisconsin Socialist Workers 1976 Campaign Committee v. McCann, 433 F.Supp.540 (1977); the right of speakers to know, to a certainty, which speech is free from regulation before they utter it and other interests (inclusion of which time for preparation of these remarks does not permit). Will those interests and the less powerful issue advocacy groups who most depend on their protection receive the same protection without the intervention of the First Amendment and the broadest application given to it by the Supreme Court. A constitutional amendment paints with a broad brush and applies equally to a local zoning fairness group as it does to a WMC or to a national labor union PAC.
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The argument that a constitutional amendment is needed is based on the conclusion that regulation of issue advocacy is needed and the argument that regulation of issue advocacy is needed is the age-old political analogy of the need to ''level the playing field.'' Maybe instead of a new amendment, what we need is a new analogy. Instead of an analogy to a playing field, maybe the analogy should be to a battlefield because elections are more like wars than they are like games. No one argued that the United States should level the playing field with Iraq or that Generals Powell and Schwarzkopf should level the playing field with their counterparts. Or perhaps we should have no analogy at all because the battlefield analogy carried to its logical extreme might have the candidates settling an election by engaging in mortal combat. That would save us all those annoying ads, but the wrong candidate might still win.
CHANGE THE COURT'S MIND OR ITS OPINION
The Supreme Court has repeatedly said that political speech, including issue advocacy in connection with candidate elections is core free speech that is entitled to the ''broadest protection.'' (Buckley at p.685) Consistent with that broadest protection, the Court found that government had to demonstrate a compelling state interest to justify restrictions on that speech. And that restriction had to be narrowly drawn to serve that compelling state interest. The Court has, thus far, identified only two such state interests: the avoidance or minimization of corruption and the avoidance or minimization of the appearance of corruption.
If a crisis sufficient to warrant an amendment to the Constitution exists, then, arguably, circumstances sufficient to persuade the Court that a third compelling state interest—loss of public confidence in the integrity of elections and in the integrity of the leadership those elections place in office—ought also to exist. In the record underlying the legislation that attempts to regulate issue advocacy, Congress will have to make the case for this third compelling state interest, if that case can be made.
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If the case cannot be made, that a third compelling state interest exists and it justifies regulation of issue advocacy under circumstances that serve that interest, then regulation of express advocacy will have to be fit within the confines of the other two state interests. What the Court has said is that the potential quid pro quo between the one making the contribution and the one receiving it justifies the regulation of contributions. If the record underlying remedial issue advocacy legislation can show that some issue advocacy groups have coordinated their expenditures with the candidates benefitting from the expenditure (as was alleged by one of the complainants in the WMC matter) and the case is made that coordination or collaboration is sufficiently like the quid pro quo of a contribution, then legislation narrowly drawn to regulating that coordination may pass constitutional muster even under the Court's strict application of the First Amendment. (Ironically, the Wisconsin Elections Board finds itself investigating an allegation of that very conduct involving a citizens' get-out-the-vote effort in regard to a Wisconsin Supreme Court race in the spring, 1997 election.)
But if neither a third compelling state interest can be demonstrated nor regulation of issue advocacy can be brought within the existing two state interests, then the ability of advocacy groups to bring their candidate speech within the limits of express advocacy has to be seen as a price society has to pay for the broadest protection of the First Amendment. Society has to consider whether there can be unfair competition in the marketplace of ideas and issues or even in the speech that gives voice to those ideas and issues. Those who would be king say yes, but they have as much interest in regulating advocacy groups as those groups do in being free from regulation.
Mr. CANADY. We have another motion to adjourn. I think that the Subcommittee will recess now so that we can go to the Floor and, so that we can get the continuity of it and not have Mr. Bopp's testimony interrupted by us coming in and going out. We will proceed to the Floor and we will be back as soon as the voting is concluded. I apologize for the delay. The Subcommittee is in recess.
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[Recess.]
Mr. CANADY. The Subcommittee will be in order. And now we will proceed with the final witness on the first panel, Mr. Bopp.
STATEMENT OF JAMES BOPP, JR., ATTORNEY, NATIONAL RIGHT TO LIFE COMMITTEE, INC., AND WISCONSIN RIGHT TO LIFE, INC.
Mr. BOPP. Thank you, Mr. Chairman and members of the Committee, Chairman Hyde. My name is James Bopp, Jr. I am General Counsel for the National Right to Life Committee, and I am here to testify on their behalf and also on behalf of Wisconsin Right to Life.
Much of my practice involves election law issues, both federal and state, including having been lead counsel in four different cases striking five sets of Federal Election Commission regulations that have sought to impinge upon issue advocacy. What is at stake, I believe, in the protection of issue advocacy is the right of citizens and citizens' groups to participate in our democratic process. That includes discussing issues of public concern, engaging in grassroots lobbying, praising or criticizing actions of public officials, and commenting on the positions of issues of candidates for public office without endorsing or expressly advocating the election or defeat of any particular candidate.
This is what constitutes issue advocacy under the First Amendment of the U.S. Constitution and something that the courts have vigorously protected. Now, express advocacy occurs when someone ''in express terms,'' according to the case of Buckley v. Valeo, or using ''explicit words'' advocate the election or defeat of a clearly identified candidate. There are no ''magic words.'' That is a derisive statement used regarding express advocacy. But the court has given examples of words which would certainly constitute express advocacy such as ''vote for'' or ''defeat.''
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Now, the Supreme Court established this ''What does the speaker say'' test so that the speaker, him or herself, will know when it is they are engaging in a communication that is then potentially subject to government regulation, because if you do expressly advocate the election or defeat of a candidate, the Court has upheld the idea that you may have to report that expenditure, if it is more than $250, to the Federal Election Commission.
They expressly and specifically rejected the idea that it is the intent of the speaker or the effect of the communication that should be examined. In fact, the Court said that if the focus was on intent or purpose, then no speaker could, according to the Court, could safely assume that anything he might say upon a general subject would not be understood by some to be an invitation. In other words, an invitation to vote. They said that such a distinction offers no security for free discussion. In these conditions, it blankets with uncertainty whatever might be said. It compels the speaker to hedge and trim.
Furthermore, the U.S. Supreme Court was quite cognizant of the fact that all of these activities, grassroots lobbying, advocating on issues of public concern, might influence an election. After all, it used to be, in other words, we used to live in a world in which we thought that voters should vote on the positions of candidates on issues or should vote because of the actions of our elected officials, on bills or in public office.
And so it is well recognized by the Court that such activity might influence an election, and they said that despite the fact that it might influence an election, it cannot be regulated as issue advocacy because these activities in a democracy are too important.
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Now, in Wisconsin we have had simply a window on the future, the kind of world that we would live in if this bright line of express advocacy would be breached, and of course many of the proposals pending in Congress advocate that very result. Now, there are more victims of such a regime than those who have already testified, and one of those victims is Wisconsin Right to Life, because—they have not been sued—but cognizant of the way the Election Board was interpreting and violating the bright line test of express advocacy and considering any communication that might influence an election subject to the state election law, they were inhibited from lobbying their own U.S. Senators regarding a pending vote in Congress.
Now, this occurred because on April 4th, 1997, a recall election was instituted in Wisconsin to recall the two U.S. Senators because of their vote against a bill in Congress, the bill that would ban partial birth abortions. Well, it just so happened within that 60 day period of that recall election on May 20th, there was a vote in the United States Senate on the issue of partial birth abortion. They had been advised by the State Election Board that if they engage in any discussion that might influence the recall election that they would be considered in violation of the statute.
So as a result of that, Wisconsin Right to Life refused, then, because they could be subject to civil or criminal penalties to even lobby people in Wisconsin regarding a pending vote in Congress with respect to these two U.S. Senators. That is the effect of creating this regime.
To summarize, the Wisconsin experience is simply the world we would live in without a bright line test. You would have citizens groups chilled in discussing the actions of public officials in office. You would have citizen groups going hat in hand to some government speech regulator saying is it okay if I say what is contained on this piece of paper. You would have citizens groups sued by partisan politicians seeking temporary political advantage by shutting up those that might criticize them, of course not suing those who are praising them. That you would have arbitrary enforcement by state, or by government bureaucrat regulators of speech where they ex post facto decide whether or not you violated the law, suing some but not others.
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I mean, this is the world in which we would live in which no one would be free to speak unless they got explicit approval from the government, and that is exactly the world that the framers intended not to visit upon this country when it adopted the First Amendment to the Constitution. Thank you.
[The prepared statement of Mr. Bopp follows:]
PREPARED STATEMENT OF JAMES BOPP, JR.,(see footnote 1) Attorney, National Right to Life Committee, Inc., and Wisconsin Right to Life, Inc.
INTRODUCTION
I am James Bopp, Jr., attorney at law, and I appreciate the opportunity to testify before this committee on behalf of the National Right to Life Committee, Inc. and Wisconsin Right to Life, Inc. 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. The appended summary of my professional résumé summarizes my work in this area.
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—such as the McCain-Feingold bill—are enacted into law.
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I. Issue advocacy is constitutionally protected.
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 2) and in a recently-published law review article, entitled The First Amendment Is Not a Loophole: Protecting Free Expression in the Election Campaign Context, which is being provided to each member of this subcommittee. 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 3) 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.''
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.(see footnote 4) 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).
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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. 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 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:
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.]
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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.]
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.
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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 to mark 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):
[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.
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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 5)
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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.
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. What this brave new world would look like is illustrated by the series of prior restraints and invasions of privacy described next. It is a glimpse of the future if so-called campaign finance reform in the McCain-Feingold model is ever established.
The attacks on free issue advocacy come from two main directions: (1) state legislative 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. Each of these prongs impinges on constitutionally-protected issue advocacy by expanding the scope of government regulation beyond express advocacy. These are discussed in turn.
A. Prong One: State Regulation Ignoring the Express Advocacy Test
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.
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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). Three such efforts—in Wisconsin, Virginia, and New York—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. WISCONSIN SPEECH IMPEDIMENTS
During October 1996, in the weeks before the elections in Wisconsin, several groups began running advertisements promoting their issues. Among them were the Americans for Limited Terms and the Wisconsin Manufacturers & Commerce. Both groups engage in issue advocacy.
Americans for Limited Terms began running radio advertisements that took to task Wisconsin state assemblyman David Travis for his position on term limits. The ads pointed out that Travis did not support term limits and asked voters to call Travis and urge him to change his mind. One ad had this text:
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Does it take a two-by-four? . . . How difficult is it? The people want term limits for career politicians. Every poll shows it. It's a given. That's what the people want.
So, why don't we have term limits? Part of the problem is Dave Travis. He refuses to support term limits; refuses to sign the term-limits pledge.
Now, folks, we're not apt to get the term limits we want with representatives like Dave Travis refusing to vote for term limits.
So, call Travis today. Tell him to change his mind. Remind him, the idea that the Legislature represents the views of the people.
Remind Travis the people want term limits. Tell him you understand politicians don't want to limit themselves, but tell Travis he really is supposed to represent the people, not the politicians.
Tell him it shouldn't take a two-by-four, or even radio ads, to get our representative to do the will of the people. It shouldn't, but for Dave Travis it has.
Paid for by Americans for Limited Terms.
It should be immediately pointed out that the advertisements neither urged people to vote against Dave Travis nor encouraged citizens to vote for anyone else. Instead, they made known his voting record on the issue of term limits. Any voter listening to the ad would, as a result, know more about Travis' position on term limits then they did before—whether they liked his position, or not. This is an example of what the U.S. Supreme Court has described as constitutionally-protected ''issue advocacy.''
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Unfortunately, under Wisconsin law, ''issue advocacy'' is not always protected. Furthermore, under Wisconsin law, any voter can, at any time, file a complaint with the Wisconsin Election Board, and thereafter initiate a state court action to force groups to comply with state election law. ''Any elector may sue for injunctive relief to compel compliance with this chapter.'' Wis. Stat. §11.66. Being an elector, assemblyman Travis took advantage of §11.66 and filed a formal complaint with the Election Board. Wisconsin Election Board Complaint No. 96–38, Travis v. Americans for Limited Terms. The Election Board refused to take action until after the election. Thus, on the Friday before election day, he filed suit to stop Americans for Limited Terms from running its radio ads. The same day the Wisconsin trial court issued a preliminary injunction that ordered that the ads be stopped immediately, based on Wisconsin law. The state court directed that: ''the defendant Americans For Limited Terms is temporarily, enjoined effective immediately, from airing, or causing or allowing to be aired, any political purpose television or radio advertising directed against State Representative David Travis that is the same or similar to the advertisement received as evidence in this case until further order of this court.'' Dane County Circuit Court Order dated November 1, 1996.
Americans for Limited Terms was not the only issue advocacy group that had its message pushed off the public airwaves. The First Amendment was dealt another blow in the case of a group called the Wisconsin Manufacturers & Commerce (or ''WMC''). WMC ran media spots that highlighted several state assemblymen's voting records on taxes. The advertisements then, like the Travis message, urged the listeners to telephone the assemblymen and change their positions on taxes. Like the experience of the Americans for Limited Terms, WMC found itself being sued in state courts in Dane County, Milwaukee County, and Eau Claire County. In each case the assemblymen mentioned in their media spots sought and received immediate injunctive relief the Friday before the elections. In each case, WMC's advertisements were considered to have a ''political purpose'' and ordered off the air, again based on Wisconsin law. Chvala v. WMC Issues Mobilization Council, Inc., Dane County Circuit Court Case No. 96–CV–2498 and Adelman v. WMC Issues Mobilization Council, Inc., Milwaukee County Circuit Court Case No. 96–CV–8317.
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So, what was the basis for these injunctions? Wisconsin law requires a group to register as a political action committee if it makes a ''contribution.'' Wis. Stat. §11.05. Wisconsin defines a ''contribution'' as anything of value given for ''political purposes'' and includes in its meaning the ''distribution of any publication or advertising matter.'' Wis. Stats. §11.01(6)(a) (1) and (6). Wisconsin law then declares an act (or speech) is for ''political purposes when it is done for the purpose of influencing the election or the nomination for election of any individual to state or local office, for the purpose of influencing the recall from or retention in office of an individual. . . .'' Wis. Stat. §11.01(16) (emphasis added).
The statute than reaches far beyond U.S. Supreme Court precedent by broadly defining acts for ''political purposes,'' and in doing so, deliberately encompassing speech well beyond that staked out by the Supreme Court as express advocacy. This is accomplished by Wis. Stat. §11.01(16)(a) which states: ''Acts which are for 'political purposes' include but are not limited to: (1) The making of a communication which expressly advocates the election, defeat, recall or retention of a clearly identified candidate or a particular vote at a referendum.'' (Emphasis added). Consequently, all the state courts had to do was pose the issue in terms of whether the American for Limited Terms and WMC advertisements were done ''for the purpose of influencing the election,'' and if so, whether the groups had registered as political action committees.
The Wisconsin courts were not constrained to protect ''issue advocacy'' as defined by the U.S. Supreme Court, because a decade earlier, the Wisconsin court of appeals had rejected the Supreme Court's test, based upon the language of the state statute. In the 1985 case of Crawford v. Whittow, the state court of appeals rejected the U.S. Supreme Court's express advocacy test and in its place adopted a five-part subjective test. The five-part Wisconsin test requires one to judge political speech based—not on explicit words of advocacy, like ''vote for,'' ''elect,'' or ''Smith for Congress,'' as required in Buckley—but on:
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1. The distributor's intentions as to political office
2. The content of the materials
3. The manner of distribution
4. The pattern and frequency of distribution
5. The value of the distributed materials.
Crawford v. Whittow, 123 Wis.2d 174, 366 N.W.2d 155 (Ct. App. 1985), held,
''In Buckley, the Court . . . also held that a narrow definition of political activity was necessary to protect the constitutional freedoms of speech and association exercised in campaign spending. The narrow standard enunciated for political activity subject to regulation was the 'express advocacy' of the election for defeat of a particular candidate . . . . We hold that . . . 'political purposes' . . . is a lesser standard than 'express advocacy' . . . . In addition to the definition in sec. 11.01(16), Stats., 'political purposes' has been interpreted in an opinion by the state elections board. The opinion says that determinations as to whether acts are for 'political purposes' must be made on a case-by-case basis. Some factors to evaluate in making this determination include: (1) the distributor's intentions as to political office; (2) the content of the materials; (3) the manner of distribution; (4) the pattern and frequency of distribution; and (5) the value of the distributed materials. We agree that a case-by-case analysis is necessary.'' At 182–183; at 159 (emphasis added).
When WMC appealed for relief from the injunction orders last November, the Wisconsin Court of Appeals reaffirmed the vitality of the five-part subjective test for judging express advocacy. In consolidated appeal State of Wisconsin ex rel. WMC Issues Mobilization Council, Inc v. Circuit Court for Dane County, No. 96–3133–W, and State of Wisconsin ex rel. WMC Issues Mobilization Council, Inc v. Circuit Court for Milwaukee County, No. 96–3139–W, slip op., (Nov. 8, 1996), the Wisconsin court of appeals held,
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''Both circuit courts recognized the validity and continuing vitality of Buckley's 'express advocacy' test, but, using federal and Wisconsin case law in support of their positions, questioned whether Buckley established a 'bright line' express advocacy test limited to terms such as 'vote for' or 'defeat,' or whether the question of express advocacy was subject to a case-by-case analysis using, among other things, the five-part test described in Crawford. Both circuit courts noted that adopting the narrow definition of 'express advocacy' promoted by WMC would effectively undercut Wisconsin's campaign financing laws, since any individual or group broadcasting an ad that did not expressly urge a vote for or against a particular candidate would not be subject to those laws.
Given this concern, the circuit courts used the case-by-case analysis described in Crawford to determine WMC advertisements represented the sort of express advocacy that would subject WMC to Wisconsin's campaign financing laws. The circuit courts did so to ensure adherence to the compelling state interest in public disclosure of campaign financing announced by the legislature. The circuit courts found that WMC was broadcasting its advertisements for 'political purposes' as defined in §11.01(16), Stats. The circuit courts found that the advertisements, given their content and the time at which they were broadcast, represented express advocacy for the defeat of Senators Chvala and Adelman.
[W]e are not persuaded that Buckley established a bright line test. . . . The role of advertising in political campaigns has changed dramatically in the twenty years since Buckley. Whether a given phrase constitutes express advocacy cannot be determined in a vacuum.'' Slip op. At 7–10 (emphasis added).
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Simultaneously, the Wisconsin elections board was considering complaints lodged by the same disgruntled assemblymen. In those proceedings, legal counsel to the Election Board recommended applying the Buckley express advocacy test, not the five-part subjective inquiry used by the Wisconsin courts. In an opinion letter, counsel reminded the Wisconsin election board that:
If a choice has to be made between First Amendment freedom of speech and regulation, the First Amendment wins hands down. The unregulated voice isn't as dangerous to the republic as is the silenced voice.
Letter from George A. Dunst, Legal Counsel, to Wisconsin Election Board Members at 22, 8 (Mar. 13, 1997).
The elections board ignored the advice. Subsequently in March, 1997, the board employed the same five-part test and determined that the political ads were ''express advocacy.'' It ordered the issue advocacy groups to register as PACs or face election board subpoenas. The Wisconsin election board has subsequently brought suit against these groups for failing to register as political committees.
Wisconsin Right to Life, Inc. (''WRL'') engages in issue advocacy through voter guides conceptually similar to the enjoined ads. The voter guides set forth the positions of candidates on issues without expressly advocating any candidate's election or defeat. WRL was aware of the treatment of issue advocacy by Wisconsin's courts and election board, the subjective test for ''express advocacy,'' and the disregard for the U.S. Supreme Court's ''express advocacy'' test. WRL knew that, if it engaged in issue advocacy without registering as a PAC, it would be violating Wisconsin election law and would be subject to penalty. Intentional violations of the PAC registration requirements is a felony. Wisconsin election laws provide for criminal punishment of up to three years in prison for intentional violations of the PAC registration provisions. Wis. Stat. §11.61.
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On April 4, 1997, a petition was filed with the Wisconsin Secretary of State seeking signatures on a petition to recall U.S. Senators Russ Feingold and Herb Kohl. The recall effort was based on the two Senators' votes against a federal bill that would ban partial birth abortions. Several hundred thousand signatures had to be gathered in a sixty day period in order to recall the two Senators and force them to stand for election. Coincidentally, on May 20th, during the period of the recall petition period, a vote was set in Congress on a bill to ban partial birth abortions.
Because of the prospect for this Senate vote, WRL wanted to publicize the position of the Senators on partial birth abortions and ask citizens of the state to lobby the Senators regarding the upcoming vote. WRL, however, could not do so because it would be viewed, under Wisconsin law as ''influencing'' the recall election, which would be a violation of law.
Not wanting to violate Wisconsin, but believing it to be unconstitutional, WRL brought suit asking the federal courts to strike down that part of Wisconsin's election law that equates ''issue advocacy'' with speech that ''influences an election.''
The court's answer came quickly. Ignoring the recent state court decisions, the federal court ruled that WRL was not harmed by Wisconsin's law. It ruled it was safe for WRL to assume that, in the future, the state courts would ''interpret the law constitutionally to accord with the federal laws on this point and the decisions of the United States Supreme Court.'' Wisconsin Right to Life, Inc. v. Paradise, Transcript of Preliminary Injunction Hearing and Decision, at 10:7–9, Case No. 97–C–323–C (W.D. Wis. May 12, 1997). But to issue advocacy groups like WRL, WMC, and Americans for Limited Terms, that decision gives little comfort, because the state courts had already ignored the decisions of the Supreme Court in rejecting the ''express advocacy'' test. WRL has now appealed to the U.S. Court of Appeals for the Seventh Circuit for relief. Wisconsin Right to Life, Inc. v. Paradise, Case No. 97–2217.
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This pattern of election-eve injunctions is typical of what happens when the bright-line major purpose and express advocacy tests are replaced by a less-protective, subjective test. The harm is especially egregious because there is no way to compensate a victim of the prior-restraint gag for the loss of free expression at the moment when it is most vital—just before an election. If an issue cannot be advocated at precisely this time, the opportunity is forever lost. Indeed, if such prior-restraints are permitted, they become a favorite weapon of political operatives seeking partisan political advantage. A little litigation is a cheap investment for an electoral victory, whatever the cost to the First Amendment.
2. AN ESTABLISHED PATTERN: VIRGINIA PRIOR RESTRAINTS
This resort to prior restraints by state courts in suppression of constitutionally-protected issue advocacy on the eve of an election is nothing new. Injunctions have issued in the past for just such alleged ''violations'' of state election law.
In Virginia, on November 4, 1989, an organization was enjoined from distributing voter guides on the basis that they did not comply with the Virginia ''disclaimer'' provision. The voter guide did have the name and address of the organization which had prepared them, but did not have the ''authorized by'' language and registration number for a PAC required by Virginia law. A state court issued an injunction barring distribution of the voter guides shortly before an election. Roberts v. Virginia Leadership Council, No. N–8489–4 (Richmond Cir. Ct. Nov. 4, 1989) (order granting temporary injunction). By this decree, the trial court construed the Virginia prohibition on any writing without the authorized disclaimer to permit an injunction against the distribution of voter guides discussing only issues and to extend to writings published by nonprofit, nonstock, ideological entities of the sort protected even as to express advocacy of the election or defeat of a clearly identified candidate in the case of FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986).
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On November 4, 1989, another Virginia trial court issued a temporary injunction, followed on November 6, 1989, with a permanent injunction, against the distribution of voter guides by the same defendants as in the prior paragraph and another organization on two bases: (1) the entities distributing the voter guides had not filed a Statement of Organization as a political committee, as required by Virginia law, and had not filed financial disclosure reports as required of political committees and (2) the voter guides did not contain the mandated disclaimer language, although they were identified as to the entity publishing them and one also had the address of the entity. Democratic Party of Virginia v. Committee for Truth in Political Candidate Positions, No. 113693 (Fairfax County Cir. Ct. Nov. 6, 1989) (order granting permanent injunction). By this decree, the trial court construed the Virginia prohibition on any writing without the authorized disclaimer to permit an injunction against the distribution of voter guides discussing only issues even though the voter guides did not expressly advocacy of the election of defeat of a clearly identified candidate.
On October 22, 1993, and on October 27, 1993, the Democratic Party of Virginia again obtained a temporary injunction against the distribution of voter guides, this time against The Family Foundation, Concerned Women for America of Virginia, and two individuals affiliated with these organizations. The injunctions were again granted by the Circuit Court for the County of Fairfax. In the first injunction, the court enjoined defendants from further distribution of their voter guides by enjoining them from ''distributing any writing concerning any candidate for any office elective by the qualified voters . . . without first filing a statement of organization with the Board as required by [Virginia election law]'' and ''unless such writing plainly identifies the person responsible therefor and carries the required authorization language. . . .'' Democratic Party of Virginia v. The Family Foundation, No. 132062, slip op. at 1–2 (Fairfax County Cir. Ct. Oct. 27, 1993) (order granting second temporary injunction). In the second injunction, the circuit court actually ordered the defendants to file a statement of organization as a political committee under Virginia election law. Id. at 2. It further barred any writing about any candidate, as in the first injunction, unless the defendants filed the statement of organization and included the mandated disclaimer with the mandated registration number. Id. at 2. The circuit court further ordered the defendants to file with the court within 24 hours ''written statements setting forth in detail the manner in which each such Defendant has complied and will comply with this Order.'' Id. at 3. See Family Foundation v. Brown, 9 F.3d 1075 (1993); Virginia Society for Human Life v. Caldwell, 906 F. Supp. 1071 (W.D.Va. 1995). These injunctions were overturned on appeal, but the damage of lost opportunity to distribute voter guides on the eve of an election was done. The Family Foundation v. Democratic Party of Virginia, No. [no number] (Supreme of Va. November 1, 1993) (order dissolving injunction).
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These election-eve gag orders are exceptionally serious. ''[T]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.'' Elrod v. Burns, 427 U.S. 347, 373 (1979). Such harm is particularly egregious with political speech because ''timing is of the essence . . . when an event occurs, it is often necessary to have one's voice heard promptly, if it is to be considered at all.'' Shuttlesworth v. City of Birmingham, 394 U.S. 147, 163 (1969). Thus, even a brief prior restraint is unacceptable when it prohibits ''political speech in which the element of timeliness may be important.'' Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 182 (1968).
3. A GROWING PATTERN: NEW YORK PRIOR RESTRAINTS
There is a growing pattern of injunctions and prior restraints against issue advocacy. Part of this pattern is a case known as Klepper v. Christian Coalition of New York, RJI No. 0196047514 (Supreme Court of New York filed Oct. 16, 1996). It was brought just prior to the November, 1996, election in New York.
In mid-October, 1996, prior to the general election in New York, eight individuals and a group known as the ''Coalition for Fair Elections'' sued the Christian Coalition of New York (''CCNY''). Id. The suit was based on a provision of New York state law which allows individuals to enforce the election laws. Election Law §16–114. This particular litigation was apparently financed not by the individuals themselves, but by the Democratic majority in the New York State Assembly. Telephone Conference by Charles T. Kriss, Local Counsel for Respondent CCNY, with Thomas Keefe, Counsel for Petitioners Klepper et al. (ca. Apr.-May, 1997).
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The petitioners sought the following relief:
(1) a declaration that CCNY is a ''political committee'' under New York law;
(2) an order directing CCNY to designate a depository and a treasurer within five days after the order;
(3) an order requiring CCNY to file statements of receipts, expenditures and contributions from its inception to the present within five days after the order;
(4) an order ''[e]njoining [CCNY] from all fund raising, expenditures and distribution of voter guides and legislative scorecard and political material within New York. . . .'';
(5) an order declaring that CCNY has ''exceeded the 1996 limitation on corporate political spending within New York'' and enjoining CCNY from spending any further funds in 1996 to ''aid or promote, directly or indirectly, the election or defeat of any candidate for election of any state or local office'' and enjoining the expenditure of funds and distribution of ''any voter guides or legislative scorecard or other political materials. . . .''; and
(6) an order assessing civil penalties against CCNY. [Petition Pursuant to CPLR 7801 (Mandamus) And Election Law §16–114 And 16–116 at 21–22, Klepper, RJI No. 0196047514.]
Before discussing the statutes involved, two aspects of the petition deserve note. First, the petition in this matter was brought immediately prior to the 1996 election. It was obviously a bare-knuckled political maneuver aimed at squelching CCNY's issue advocacy at a time when the Democrats in the state legislature were worried about the effect of CCNY voter guides on the outcome of the election.
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Thus, it is an object lesson in the way in which statutes establishing a private cause of action to enforce the election laws can be used cynically for political ends. The election law becomes just another arrow in the political quiver, a weapon of to be employed routinely against one's political enemies, rather than a rule of law that will be even-handedly applied to serve a compelling state interest.
Second, the petition in this case sought court orders that would have amounted to ''prior restraints'' on CCNY's speech. Plaintiffs sought to nip CCNY's speech in the bud, rather than merely assessing penalties for violations after the fact.
This increases the otherwise chilling effect of statutes which burden First Amendment rights. Last-minute pre-election preliminary injunction motions are particularly chilling because they require the organization to delay their intended political speech while they put all their energy into hiring counsel and defending the suit.
Plaintiffs attacked on two fronts. First, they attempted to have CCNY defined as a ''political committee'' under the election law, thus triggering onerous registration, reporting and disclosure requirements. Second, plaintiffs claimed that because CCNY was a corporation its publications were subject to the $5,000 limit on corporate expenditures and contributions. They claimed that CCNY had already expended the limit, and therefore, should be enjoined from spending any more money in connection with the 1996 election. As will be seen below, the statutory provisions in question were clearly overbroad in that they encompassed issue advocacy in violation of the First Amendment.
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One provision of the election law burdened issue advocacy through the definition of ''political committee.'' Election Law §14–100(1). Being designated as a ''political committee'' under New York law subjects an organization to a series of burdensome requirements. For example, it must (1) designate a treasurer; (2) designate a depository, (i.e., a bank); (3) maintain detailed records of contributions and expenditures; and (4) file detailed statements ''setting forth all the receipts, contributions to and the expenditures by and liabilities of the committee. . . .'' Election Law §14–102, 14–118, and 16–114.
Such burdensome requirements were triggered by nothing more than engaging in issue advocacy. The term ''political committee'' is defined to include a group of persons who do nothing more than engage in issue advocacy, that is, who ''aid or promote a political principle.'' Election Law §14–100(1) (emphasis added). Obviously, because of the inclusion of the terms ''promote'' and ''principle,'' the definition of ''political committee'' (which carries with it onerous statutory reporting and disclosure requirements) burdens not just express advocacy of the election or defeat of a clearly identified candidate, but issue advocacy as well.
Another provision of the New York election law limited the amount of corporate expenditures and contributions to $5,000 in the aggregate per year. Election Law §14–116. This section provided that
a corporation . . . may make expenditures, including contributions, not otherwise prohibited by law, for political purposes, in an amount not to exceed five thousand dollars in the aggregate in any calendar year. . . .
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Election Law §14–116(2). Like the political committee provision discussed above, this provision clearly encompasses and burdens issue advocacy by placing monetary limits on issue advocacy by corporations. It does this through very expansive language. First, a corporation is limited to $5,000 in expenditures ''for political purposes'' in a calendar year. The phrase ''for political purposes'' clearly encompasses issue advocacy as well as express advocacy. Moreover, the provision defining ''contribution'' for the purposes of this limitation includes ''any payment made to promote the success or defeat of a political party or principle. . . .'' Election Law §14–100(9). As noted above, such a phrase clearly encompasses issue advocacy.
The Court took no action on the petitioners' motion for preliminary injunction prior to the election. Subsequently, on December 10, 1996, the Court denied the preliminary injunction motion. This represented a victory of sorts for CCNY and its ability to exercise its First Amendment right to engage in issue advocacy since it was not enjoined.
However, CCNY's motion for summary judgment was argued on May 9, 1997, and has not been decided to date. The outcome of that motion may determine the extent to which New York issue advocacy groups will be able to exercise their free speech rights in the next election.
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.
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1. THE STATUTORY BURDEN ON ''CONTRIBUTIONS''
As discussed below, the goal of the coordination theory is to treat disbursements for political speech, such as issue advocacy, that would otherwise be constitutionally protected from regulation as ''contributions'' to a candidate so that they fall within statutory prohibitions and limitations. Federal law bars corporations and unions from making political ''contributions.'' 2 U.S.C. §441b. Individuals may make political ''contributions'' to candidates, but are limited to only $1,000 per election. 2 U.S.C. §441a. 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.
2. THE COORDINATION THEORY AND ITS CONSTITUTIONAL FLAWS
The coordination theory is most plainly seen in regulations recently proposed by the Federal Election Commission. The proposed rules are published by the Federal Election Commission (FEC) at 62 Fed. Reg. 24,367–24,374 (to be codified at 11 C.F.R. Parts 100, 104, 109 and 110) (proposed May 5, 1997).(see footnote 6)
The discussion below is of only one provision out of many in the proposed regulations. It is given as an example of what the FEC is attempting with its coordination and as an anchor point for the discussion of the constitutional flaws with the coordination theory.
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The proposed FEC regulations which would be located at 11 C.F.R. §100.7, 100.23 and 109.1 set out the circumstances under which a disbursement(see footnote 7) 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 8) If a disbursement is ''coordinated'' with a candidate, according to these proposed regulations, the disbursement is considered a ''contribution'' to the candidate, if it might influence an election, even if it did not contain express advocacy.
These proposed 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 9) and invalidated regulatory efforts,(see footnote 10) has been wrecked on the shoals of the First Amendment.
The proposed rules embrace an alternate means to the same goal. Rather than focus on issue advocacy as an ''expenditure'' under the FECA, the proposed 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.
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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 that 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 11) 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 or defeat of a clearly identified candidate.(see footnote 12) 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 proposed regulations and coordination theory infringe on issue advocacy, they must be rejected.
b. Government may not regulate ''independent expenditures.''
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
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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).]
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.
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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.
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.]
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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.
In Colorado Republican Federal Campaign Committee v. FEC, 116 S. Ct. 2309 (1996), 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 13) 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 Chairmen was ''as involved as he could be'' with the individuals seeking the Republican nomination; (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,'' no restriction of disbursements for express advocacy communications absent actual coordination with a candidate concerning the specific expenditure.(see footnote 14)
3. CONGRESSIONAL SUBPOENAS: THE COORDINATION THEORY IN ACTION
From the foregoing discussion, it is clear that the coordination theory is unconstitutional. However, if it were ever to be implemented as law, the intrusion into the inner workings of citizen groups engaged in the political marketplace of ideas would be serious and extensive.
Present enforcement of laws relating to express advocacy is simple. One examines the communication itself to see if it has explicit words expressly advocating the election or defeat of a clearly identified candidate. This plain application of the express advocacy test may be done without recourse to further information. However, if issue advocacy (or independent expenditures) may be converted into political speech that may be regulated by evidence of coordination, then enforcement officials must ferret out any evidence of coordination in the written and oral communications and in circumstantial evidence available from examining all the records and activities of an organization and its officials. This wide-ranging investigation will be severely invasive.
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An example is available in recent congressional subpoenas issued pursuant to an investigation by the Senate Committee on Governmental Affairs(''SCGA'') to twenty-six organizations, including the National Right to Life Committee, Emily's List, the Christian Coalition, the National Education Association, the Sierra Club, and the National Education Association. The subpoenas are based on the coordination theory.
The AFL–CIO received one of the Committee's subpoenas and responded that the Committee was seeking information on communications involving issue advocacy, which could not be regulated and so could not be investigated. Memorandum of Points and Authorities in Support of AFL–CIO's Objections to Document Subpoena, In the Matter of a Subpoena to the AFL–CIO (U.S. Sen. Comm. on Gov. Affairs filed Aug. 20, 1997). The response of Committee Chairman Fred Thompson was that he was authorized by the Senate Resolution 39 to investigate both ''illegal'' and ''improper'' activities connected with the 1996 election. Letter from Sen. Fred Thompson, Chairman of the Senate Committee on Governmental Affairs, to the AFL–CIO 2 (Sep. 3, 1997). Under the authority to investigate ''improper'' activities, he listed authority to explore matters involving undisclosed coordination. Id. While this letter and its compliance order was sent to the AFL–CIO, all the other groups received similar subpoenas.
The breadth and depth of the information sought by the subpoenas, along with the crushing burden of compliance, all reveal what life would be like if the bright-line protections of issue-advocacy are breached. Such invasive fishing expeditions into the inner, private deliberations of citizen groups will become commonplace in order to investigate suspected violations of a freewheeling definition of express advocacy. Such investigations pose a substantial threat to the free speech, free association, and privacy rights of citizen groups, and to the rights of other parties to have confidential communications with them.
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The subpoenas are astonishing in their breadth, seeking to investigate legal and constitutionally protected educational and lobbying activity, issue advocacy, and activities of the organizations. Furthermore, the subpoena demands confidential communications of the groups within their own offices, with other groups, with their members, with the public, with the news media, and with members of Congress.(see footnote 15)
While some of the requests contained in the subpoena are validly within the scope of the legal authority of a Congressional committee, many are not. By targeting the lawful educational, lobbying and political activities and issue advocacy of these groups, the Committee's subpoena directly implicates their First Amendment free speech and free association rights. As a result, ''the First Amendment may be invoked against infringement of the protected freedoms by law or by law-making.'' Watkins, 354 U.S. at 196. ''The mere summoning of a witness and compelling him to testify, against his will, about his beliefs, expressions or associations is a measure of government interference.'' Id; Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957). Such disclosures ''can seriously infringe on privacy of association and belief guaranteed by the First Amendment.'' Buckley v. Valeo, 424 U.S. 1, 64 (1976). ''The right of privacy in one's political associations and beliefs will yield only to a subordinating interest of the State [that is] compelling.'' Brown v. Socialist Workers 1974 Campaign Committee, 459 U.S. 95, 91–92 (1982).
In stark contrast to the need for a compelling interest to justify the mind-boggling breadth and intrusiveness of the subpoena issued by the Committee, The New York Times has reported that ''one staff investigator called the subpoenas a 'fishing expedition,' saying that neither the Democrats nor the Republicans on the committee were sure what they were looking for. Rather, he said, each side is simply hoping to find new abuses that it can exploit to embarrass the other when the public hearings resume in September.'' Advocacy Groups Near a Showdown With the Senate, New York Times, Aug. 14, 1997, at A1, col. 1 (emphasis added).
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The fact that this investigation is a partisan ''fishing expedition'' is readily apparent from the actions of the Committee announcing the issuance of these subpoenas and the nature of the subpoenas themselves.(see footnote 16) On July 30th, the Committee issued a press release announcing that it had approved 26 subpoenas: 14 that were ''minority requested'' and 12 that were ''majority requested.'' Thus, from its very inception, the investigation was viewed by the Committee as a partisan one: Democrats investigating what they viewed as ''Republican-leaning groups'' and the Republicans investigating ''Democrat-leaning'' groups. In practice, the investigation has been conducted that way.(see footnote 17)
Furthermore, the subpoenas issued to each of the 26 groups are nearly identical. Specific alleged ''illegal or improper'' activities are not targeted; rather the subpoenas demand that each group submit to a top-to-bottom and across-the-board examination of all of its activities.
However, a Congressional committee has no right to engage in a general ''fishing expedition . . . for the chance that something discreditable might turn up . . .—an undertaking which uniformly has met with judicial condemnation.'' Jones v. Securities Commission, 298 U.S. 1, 26 (1936). Nor can a Congressional committee conduct an investigation ''to expose for the sake of exposure,'' Watkins, 354 U.S. at 200, to satisfy some ''official curiosity,'' United States v. Morton Salt Co., 338 U.S. 632, 652 (1950), or ''on the mere suspicion that the information sought may constitute or lead to evidence that some of the people concerned, or others, have violated . . . election laws.'' Pollard v. Roberts, 283 F. Supp. 248, 257–58 (E.D. Ark. 1968). Rather, ''it is particularly important that the exercise of the power of compulsory process be carefully circumscribed when the investigative process tends to impinge upon such highly sensitive areas as freedom of speech or press, freedom of political association, and freedom of communication of ideas.'' Sweezy, 354 U.S. at 245. The Committee's subpoenas utterly fails this test.
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The courts have long recognized four criteria for ascertaining the lawfulness of the exercise of the subpoena power of a Congressional committee:
(1) the material sought or answers requested must relate to a legislative purpose that Congress could constitutionally entertain,
(2) the material sought or answers requested must fall within the grant of authority actually made by Congress to the investigating committee,
(3) the material sought or answers requested must be pertinent to the authorized inquiry, and
(4) the committee may not unjustifiably encroach upon an individual's right to privacy nor abridge his or her freedom of speech or association. [Sinclair v. United States, 279 U.S. 263 (1929); Watkins v. United States, 354 U.S. 178 (1957).]
The subpoenas, however, demand documents that are outside the lawful exercise of the Committee's subpoena power in the following respects.
a. The subpoenas demand documents related to publicly debated issues, legislative and grass-roots lobbying, and issue advocacy, which are beyond the lawful authority of Congress to legislate.
Any investigation by Congress must relate to a valid legislative purpose, subject to the limitations placed by the Constitution on Congressional action, including the limitations of the First Amendment. Watkins v. United States, supra; Barenblatt v. United States, 360 U.S. 109 (1959). Thus, the power to investigate is ''co-extensive with the power to legislate. . . . It cannot be used to inquire into private affairs unrelated to a valid legislative purpose. Nor does it extend to an area in which Congress is forbidden to legislate.'' Quinn v. United States, 349 U.S. 155, 160–61 (1955).
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The present subpoenas, however, target any document regarding any ''publicly debated issue,'' or any ''issue advocacy,'' including documents containing discussion of issues of public concern, the positions and actions of public officials and candidates, and any legislative or grassroots lobbying activity, even if the communications are strictly intra-office communications or private and confidential communications with parties outside of the organization.
Issue advocacy, however, is at the heart of the ability of citizens' groups to participate in our representative democracy. It is ''more than self-expression; it is the essence of selfgovernment.'' Garrison v. Louisiana, 379 U.S. 64, 75 (1964). As a result, the United States Supreme Court has ruled unequivocally that, under the First Amendment, issue advocacy may not be burdened and is, in fact, outside the reach of the federal government. Buckley v. Valeo, 424 U.S. 1 (1976); FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986).(see footnote 18)
In order to protect issue advocacy, the Supreme Court has adopted the ''express advocacy'' test which requires that the communication ''in express terms advocate the election or defeat of a clearly identified candidate for public office.''(see footnote 19) Buckley, 424 U.S. at 44. Indeed, the Supreme Court has expressly held that ''[s]o 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.'' Id. at 45 (emphasis added). Only communications containing ''express advocacy'' are subject to regulation by government.(see footnote 20)
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The subpoenas, however, demand issue advocacy documents that do not expressly advocate the election or defeat of any candidate. Indeed, any document that involves a ''publicly debated issue,'' or that mentions an incumbent member of Congress, is demanded even though the document does not refer to an election. Since Congress is constitutionally prohibited from regulating this activity, the subpoena requesting these documents is beyond the lawful authority of Congress to regulate and, therefore, for the Committee to investigate.
b. The subpoenas demand production of internal intra-office communications regarding publicly debated issues, legislative and grass-roots lobbying, issue advocacy, and PAC activities, in violation of the privacy rights of the groups.
Even if it were lawful for the Committee to engage in a wide ranging investigation of the lawful and constitutionally protected educational, lobbying, and issue advocacy activities of the groups, the subpoena seriously violates their legitimate privacy rights by demanding access to private and confidential communications among members of its staff.
Confidential intra-office communications of a private organization ''represent the very heart of the organism which the first amendment was intended to nurture and protect: political expression and association concerning federal elections and officeholding.'' FEC v. Machinists Non-Partisan Political League, 655 F.2d 380, 388 (D.C. Cir. 1981). The ''release of such information to the government carries with it a real potential for chilling the free exercise of political speech and association guarded by the first amendment.'' Id. As a result, the District of Columbia Circuit refused to enforce a Federal Election Commission's subpoena demanding ''a certain political group's 'internal communication,' '' ''all communications among various groups,'' and ''a listing of every official, employee, staff member and volunteer of the group.'' Id.
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Because there is no compelling interest in conducting this inquiry, it is beyond the lawful authority of the Committee to conduct.
c. The subpoenas demand production of private confidential communications with members of Congress regarding lobbying activities and with certain other citizen groups regarding any subject matter, in violation of the free speech and association rights of the groups, members of Congress, and other citizen groups.
Even if it were lawful for the Committee to engage in a wide ranging investigation of the lawful and constitutionally protected legislative lobbying activities of citizen groups, the subpoena demands that private confidential communications with members of Congress be produced.(see footnote 21) This demand seriously intrudes on the right of citizen groups to petition their government for redress of grievances and on the right of members of Congress to freely communicate with their constituents and others of their choosing.
Just as egregious is the Committee's demand that the groups produce all private and confidential communication, without regard to subject matter, with certain other private organizations. This demand seriously intrudes on the free speech and free association rights of all organizations involved.
As one court explained, ''[t]o the extent that a public agency or officer unreasonably inhibits or discourages the exercise by individuals of their right to associate with others of the same political persuasion in the advocacy of principles and candidates of which and of whom they approve, and to support those principles and candidates with their money if they choose to do so, that agency or officer violates private rights protected by the First Amendment.'' Pollard v. Roberts, 283 F. Supp. 249, 258 (E.D. Ark. 1968).
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Because there is no compelling interest in intruding into the private confidential communications of the groups with members of Congress regarding legislative matters or among citizen groups regarding any matter, the request is beyond the lawful authority of the Committee. However, it is typical of the sort of investigation required if the coordination theory is established as constitutionally permissible.
CONCLUSION
The trampling of First Amendment freedoms in Wisconsin, Virginia, New York, FEC regulations, and Congressional subpoenas is typical of what will happen if so-called campaign finance reform in the model of the McCain-Feingold bill prevails.
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.
SUMMARY OF RESUME OF JAMES BOPP, JR.
James Bopp, Jr. is an attorney with the law firm of Bopp, Coleson & Bostrom in Terre Haute, Ind. His law practice concentrates on first amendment cases regarding political free speech and free exercise of religion and constitutional law cases regarding abortion, infanticide, euthanasia and assisted suicide. He represents numerous not-for-profit organizations, political action committees, and political party committees, including the National Right to Life Committee, Inc. and the Christian Coalition in Washington, D.C.
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Mr. Bopp's extensive federal and state election law practice includes successful federal litigation striking five sets of Federal Election Commission regulations in cases including Faucher v. FEC, 928 F.2d 468 (1st Cir. 1991), and Maine Right to Life Committee v. FEC, 98 F.3d 1 (1st Cir. 1996). In addition, Bopp has successfully challenged state election laws in over a dozen states on free speech grounds, including winning the seminal cases of Day v. Holahan, 34 F.3d 1356 (8th Cir. 1994), and New Hampshire Right to Life Political Action Committee v. Gardner, 99 F.3d 8 (1st Cir. 1996). Finally, Bopp has successfully litigated several redistricting cases, including La Porte County Republican Central Committee v. Board of Commissioners, 43 F.3d 1126 (7th Cir. 1994).
Because of Bopp's expertise in election law, he has testified on campaign finance reform before the United States Senate Committee on Rules and Administration and before the Subcommittee on the Constitution of the United States House Judiciary Committee. Bopp has published a leading law review article on election law entitled The First Amendment Is Not A Loophole: Protecting Free Expression in the Election Campaign Context, 28 UWLA Law Rev. 1 (1997), and has published opinion pieces in The Washington Post and The Washington Times.
Mr. Bopp is currently Vice Chairman of the Free Speech and Election Law Practice Group of the Federalist Society.
Mr. Bopp resides in Terre Haute, Indiana, with his wife, Christine, and three daughters.
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Mr. CANADY. Thank you, Mr. Bopp, and again we thank all the members of this panel. Mr. Scott is recognized.
Mr. SCOTT. Thank you, Mr. Chairman. Mr. Bopp, on that last point where you mentioned pending votes, would the situation be any different if the Congress had been in recess during that part of the election?
Mr. BOPP. No, it would not have been. It was, under Wisconsin law, because the issue in the recall——
Mr. SCOTT. No, would your reaction to the prohibition be different?
Mr. BOPP. No. No. Because citizens' groups should be free to discuss how their representatives vote in Congress at any time, but they were prohibited, and it was even more aggravated prohibition because there was a pending vote in this context.
Mr. SCOTT. Thank you. Mr. Buchen, you indicated, I think you kind of referred to the process of having to submit your ad to government officials to see if it was all right with them if you could display it. What do you think of that process?
Mr. BUCHEN. Well, I think it is fundamentally an unacceptable method of regulating speech. I think that the day that we——
Mr. SCOTT. Let me add a little bit to it. Submitting your testimony to government officials when you are about to criticize government officials, what do you think of them being able to censor what you are about to say?
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Mr. BUCHEN. That is basically the proper characterization of it. We would be in a position where, the people that we are going to criticize would be able to pass on whether or not we would be allowed to criticize them. I think, you cannot characterize the First Amendment as having any meaning if the government gets to decide when and where you get to speak before you do it.
Mr. SCOTT. Now, the motive of your organization in the issues were issue oriented when you had your organization, an ad campaign. Would the interpretation be different if your group had come together with the express purpose of defeating an incumbent candidate and the issue ads that you were going to use had the motivation of defeating an incumbent candidate?
Mr. BUCHEN. Well, here is the way I look at that. All speech on issues has a political context to it, no matter when you engage in it. When I go out in June and talk to the public about how members of the legislature voted on the budget bill and say they voted against a tax increase or they voted for a tax increase or whatever it is, there is a political implication. It sets up something in people's minds to the extent that you recognize that, you then are faced with some kind of, you know, subjective analysis of, whether or not it has too much of a political implication and is therefore subject to regulation. I think that that is a slippery slope. Such an approach denies you basic free speech rights based on somebody's subjective determination that certain speech is too political, even though all speech on issues is political to some degree no matter when it is occurring.
Mr. SCOTT. Part of the challenge we have is where to draw the line. Do you see it as a meaningful line, that you can have an ad that is clearly political telling someone to vote against the candidate, the exact same campaign ad that cuts off the last three seconds where the express advocacy is, and calls the 27 seconds of the ad issue advocacy? What is the difference, is that a meaningful line to draw?
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Mr. BUCHEN. Well, I think that it is the business of drawing lines that is the concern. In part, it is premised on the idea that somehow the public is damaged by getting this information, and I guess I would submit that the more information the public gets the better, and they consider the source. We have our point of view on things, others have their point of view. The candidates certainly have their point of view. I am not fearful that the public is going to get too much information, and that we need to cut off some form of information that they are going to get with campaign regulation.
Mr. SCOTT. Mr. Dunst, what standard did you use to—did the Commission use to exercise prior restraint for the Wisconsin Manufacturers and Commerce advertising?
Mr. DUNST. Well, the Elections Board did not actually exercise prior restraint. We made a decision that, or the Board made a decision that the two, three actually, groups had engaged in express advocacy. The prior restraint that you might be referring to is the order from the Circuit Court, or Circuit Courts in various counties in Wisconsin that restrained WMT or for that matter I believe ALT from engaging in certain ads. The Board did not.
Mr. SCOTT. Do you know what standard was used by the court?
Mr. CANADY. The gentleman's time has expired. The gentleman will have 2 additional minutes.
Mr. SCOTT. Thank you, Mr. Chairman. What standard was used by the Court?
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Mr. DUNST. The Court used express advocacy but then applied a broader standard of express advocacy by taking into consideration not only the text of the message but also surrounding circumstances.
Mr. SCOTT. The standard usually in a prior restraint, you do not have prior restraint on a close call, and in fact I think, were we still in litigation on this thing?
Mr. DUNST. Yes.
Mr. SCOTT. Okay, but I think it is at least a close call and they exercised prior restraint.
Mr. DUNST. Actually, the Elections Board was not involved in litigation. WMC and Term Limits and the Sierra Club were all, but the Board was not. The Board has simply done what is called a forfeiture action against those parties and is not part of the injunction against them from taking out ads.
Mr. SCOTT. Let me try to get in one more question to Mr. Bopp. In express advocacy, issue advocacy, is there any problem with the ''issue advocacy group'' coordinating their advertising campaign with the express advocacy campaign?
Mr. BOPP. No, if I understand your question. Issue advocacy is not converted into political speech because you coordinate it with the candidate, you coordinate it with a PAC, or anything. In other words, the Supreme Court in Buckley, in pages 78 through 80—and I point this out in my testimony—expressly held that, for a coordinated expenditure to be considered to be a contribution to a candidate, it had to contain, that communication had to contain express advocacy itself.
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Mr. SCOTT. And so if you have an advertisement where a candidate, where you talk about candidates A's good record and candidate B's bad record, and cut off the express advocacy, you can coordinate with another group to run those ads while we run these ads with the last three seconds?
Mr. BOPP. Yes. Indeed, it is my opinion that a sitting President could write issue ads and have a political party run those ads and they would not be a contribution to his campaign.
Mr. SCOTT. That is a hypothetical situation.
Mr. BOPP. Hypothetical. That is the reason I use no names.
Mr. CANADY. Mr. Hyde.
Chairman HYDE. I have no questions.
Mr. CANADY. Mr. Bryant.
Mr. BRYANT. Mr. Dunst, I would like you to talk a little bit more if I could. Do you have any, as I understand it, your law in Wisconsin is much more restrictive. At least, I am not sure you are willing to say that, but it looks like it is broader, casts a broader net out there in terms of if an ad has a political basis or something like that than the federal law is?
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Mr. DUNST. The language of the Wisconsin statute is, but that language has been limited by an Attorney General opinion and by a rule of the Elections Board to the express advocacy standard set forth in Buckley v. Valeo. As I was referring to before, the Circuit Court actually applied a different statute than the one which defines express advocacy, or political purpose in Wisconsin, and when it applied, read into the term express advocacy context, surrounding circumstances notwithstanding various federal court decisions that would not do that.
Mr. BRYANT. What is the status of the federal—I understand there is federal litigation?
Mr. BUCHEN. The federal litigation is pending. The briefs have all been submitted and a motion for summary judgment. We are now awaiting the judge's decision to either issue, an opinion on that motion or abstain, and basically let us finish off in state court before they take it up. That is what she has got in front of her at this point.
Mr. BOPP. And the federal court case I brought on behalf of Wisconsin Right to Life, yesterday the court decided to abstain because of the pending state court cases, which we will appeal because we believe that it is proper for a federal court to enforce federal Constitutional protections against state laws that have been applied to violate those rights.
Mr. BRYANT. Well, I do not think I have any further questions.
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Mr. CANADY. Yes, thank you. The gentleman from North Carolina, Mr. Watt.
Mr. WATT. Thank you, Mr. Chairman, and I will also be brief because I just have one question. Perhaps as the person in the House who has most consistently advocated for a literal reading of the Constitution, most people, most of my colleagues would probably say I would just say free speech and stop and close my mind, but I find this a very, very difficult issue, as are most First Amendment issues once you get beyond the kind of superficial, let everybody say what they have got to say democracy. Most of these issues are very difficult not only in speech but religion, and a number of other areas under the First Amendment.
So while I do start with the proposition that the First Amendment is exactly what it says, that we should make no laws abridging the freedom of speech, I guess the question I have for each of the panelists is generated by the concern that I hear from the other side, which I think is a legitimate concern. In that context, how do you protect a candidate from a last minute blitz, onslaught by, in a context that they really have not had an opportunity to plan for or respond to? How would you, each one of you, address that issue which I think is at the base of what is causing the concern here? I do not think anybody is consciously trying to cut off speech and advocacy, but people are legitimately concerned that you are out there, and you are in the last week of a political campaign, and all of the sudden, you know what your opponent has raised in terms of money and you know, there are protections inside the political context, and all of a sudden you get this, blown out of the water by something you have not budgeted to respond to and sometimes you do not even know who is attacking you. How do you address that?
Mr. BUCHEN. To the extent that that has happened to people there really is not any evidence that suggests that that is determinative of the outcome of an election. Some people win, some people lose. That is the political system, but to tie one thing to the other, I do not think you can really show a direct correlation there to suggest, that that kind of activity is, you know, absolutely, determining the outcome.
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Mr. WATT. I do not want to debate whether it is determinative of any election, I think I disagree with you. You have got to remember I was the campaign manager for Harvey Gantt against Jesse Helms in 1990, and I think I could make a pretty substantial case that some of these expenditures had substantial impacts on the outcome of that election. I do not think that is the issue, though. That potential is there whether it is true or not true that it has an impact. So how do you guard against the potential? I guess that is the question.
Mr. BUCHEN. From there it comes down to the ability of the citizenry to assimilate all this information, the source of information, information on both sides, and make its informed judgment. Advertising does not vote, people vote. I think it can be overstated that X amount of spending means, will determine a particular election outcome.
In addition, I think the problem is, when you start going down that road——
Mr. CANADY. The gentleman's time has expired. The gentleman will have 2 additional minutes.
Mr. BUCHEN. When you start going down the road of deciding when you can speak, or limits on when you can speak or saying only this kind of money can be used for speech, you are starting to make choices about who has relative advantage in the area of speaking publicly or speaking out on issues. There are winners and losers in the game of trying to regulate the timing and the source of political money. I think it is inappropriate for the government to make those choices. I think the free market should prevail in speech probably more than anywhere, and that is what we are here to talk about.
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Mr. MERICAN. I would like to address that as well. Your question points to the competing interests that I have seen on this issue. I have heard incumbents and people in the government, elected officials and bureaucrats as well, complain that issue advocacy hinders their conduct of a campaign. That, to me, addresses the wrong question. The question that we have to ask whenever we are going to consider a restriction on speech is not whether an incumbent or a candidate can conduct a campaign in the way that he or she wishes, but how do we protect those third parties, as I have heard issue advocacy groups referred to, we are now third parties, how do you protect us? How do you protect citizen's rights to have their say in the way that they want to say it when they want to say it? That is what the First Amendment addresses.
You are right. The First Amendment does not say that elected officials and other candidates have a right to conduct an election in the way that they see fit. That is not a Constitutional protection. What is a Constitutional protection is for citizens to have their say on political issues when and how they see fit.
Mr. BOPP. I would like to address that, Congressman Watt. I have been in your position——
Mr. CANADY. No more time.
Chairman HYDE. I do not want any more time to ask a question, but I would like to hear——
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Mr. CANADY. The gentleman has 1 additional minute.
Mr. BOPP. Thank you very much, Mr. Chairman. I have been in your position, Congressman Watt, where I have been a campaign manager, and I was a campaign manager for a state-wide candidate in Indiana, and obviously candidates and campaigns want to control, you know, the whole environment, and so this is disconcerting that people that you cannot control would want to participate.
It seems to me that we have to look at this not in terms of the comfort of candidates or campaigns, but in the effect on our democracy and who gets to participate. Elections are for everyone. In other words, it is the people, the voter, that ends up with this representative, this person that is elected, and so because their interests are at stake in who represents them, they also have the right under the First Amendment, I think is the way we concede this, to participate this.
That means that they can express an opinion just as you as a campaign manager or candidate can express an opinion on your own election, I am free as some third party to express an opinion on your election as well. And secondly, I do not see that there is any evil here. In other words, what is happening? There is a discussion about the position of a candidate on issues. Isn't that what elections should be about?
Mr. CANADY. The gentleman's additional time has expired. Mr. Hyde.
Chairman HYDE. Thank you very much. Perhaps I do not have a comprehensive grasp of this whole subject. I would stipulate that, but if you are determined to control political speech, you had better do something about reining in the newspapers, and I do not know how you are going to do that, but they have a lot to say about issues and candidates and vote for this one and do not vote for that one, and if you are going to stop citizen groups like Term Limits from having their say, you better do something about the Chicago Tribune, the New York Times, and the rest.
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Of course, you will not touch that. By you, I am not speaking to you folks, I am speaking to that collectivity out there in states that wants to, I will not say shred the First Amendment, but beat it out of shape. And so I just hope that the newspapers will be included in this circle of those to be regulated, if you are to be comprehensive about it.
I have always given my government the benefit of the doubt on just about anything. You know, I am a flag-waving American Legion veteran, but as I live longer and longer, and the gentleman from Term Limits may not appreciate this, but I think I have learned something.
Mr. HUTCHINSON. We have always appreciated your candor.
Chairman HYDE. I am learning that the government can be deadly wrong and can be oppressively wrong, and when they start regulating speech, I want to count the spoons, to paraphrase Emerson's famous remark. Now, the power of the government, and you have no place to turn when the government is against you, has a scary aspect to it, and I want to ask Mr. Bopp, you, the Emilies List, the Christian Coalition, the National Education Association, the Sierra Club, have recently been visited with subpoenas. And those subpoenas demand confidential communications within your own offices, with other groups, with your members, with the public, with the news media and with members of Congress. They want everything from aardvark to Zimbabwe that you have got on your activities in attempting to educate people as to issues that are deadly serious to you and deadly serious to me and to them.
I would like your comment as to whether you think these, and these were from Congress. These subpoenas were from the Senate, but people are people whether they are in the Department of Justice or they are in Rayburn. Would you comment on the breadth, of the reach of these subpoenas and whether they have a chilling effect on your organization's ability to lobby and instruct and inform?
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Mr. BOPP. Yes, I would be glad to. Thank you for that question. I think these subpoenas are another window on the future of the world that we would live in if measures like McCain-Feingold would pass, and Congressman Scott asked about the idea of coordinated expenditure and whether or not it had to have express advocacy in it, and this has been another way where people have tried to attack issue advocacy, is by saying if it somehow or other coordinated with the candidate, if it happens to influence an election as in the candidate in Ohio, Joel Hyatt's case, then you can be, you are potentially in violation of the law.
Well, in order to investigate whether or not you have coordinated with the candidate, you have to engage in the very investigation that the Senate Committee has instituted by issuing those subpoenas. They have asked for every external and internal document, or any communication with some 15 or 20 groups, with respect to National Right to Life Committee, with regards to any publicly debated issue that mentions any federal candidate, which means of course any federal office holder as well, and that they are to examine the, the AFL-CIO said that this would be ten million pages of documents that they would have to produce.
And of course, what would they involve? They would involve our decision to, whether or not to support a particular bill, our communication with a member of Congress on possible amendments to that bill or a legislative strategy on how we might try to pass that bill.
Now, and it is not that this would not be really interesting, I am sure, for partisan politicians to see——
Mr. CANADY. The gentleman will have 2 additional minutes.
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Chairman HYDE. Thank you.
Mr. BOPP. But it is absolutely devastating to the ability of a group to conduct educational and lobbying activities because you have got to be able to talk to members of your own staff candidly about legislation, about legislative strategy, about how you are going to educate on the issue that you have, who is going to help you. You have to be able to communicate confidentially to other groups that you are trying to work with, and you also have to communicate confidentially with members of the press and with members of the legislature in carrying out those activities.
But if we are going to enter a world in which coordination is the test, and in anything you do might influence an election if coordinated is now prohibited, as it would be as a contribution by a corporation, well, then these wide-ranging, incredibly intrusive and absolutely devastating investigations would be routine.
Chairman HYDE. Well, one last sentence. I do not want to put an overly grandiose cast to this, but Lincoln's great question whether a nation conceived in liberty and dedicated to the proposition that all men are created equal can long endure, I think we are moving towards an answer limiting free speech with all of this and drawing the line between express advocacy and issue advocacy having some bureaucrat making that decision as to what is allowable and what is not.
That is not the country as it was founded or as it was intended to be. I think this Congress had better not be stampeded into reforming things that turn out a far worse situation than when you start. Senator Roscoe Conklin of New York said that when Dr. Johnson said, ''Patriotism is the last refuge of the scoundrel,'' never considered the possibility for the word ''reform.'' With that, I will shut up. Thank you.
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Mr. CANADY. Thank you, Mr. Chairman. Mr. Hutchinson.
Mr. HUTCHINSON. The Chairman is always a difficult speaker to follow, and I am very grateful for each of your testimonies. I think that you have sounded the alarm on a matter of great importance. I think we all ought to share in the concern of the government trying to regulate the content of free speech, and so I congratulate you and appreciate your efforts in fighting that battle.
I would encourage you as you talk about campaign reform in Congress not to label everything with the same stroke as you do with McCain-Feingold. I agree that McCain-Feingold contains what I believe are clear unconstitutional provisions that infringe upon free speech, but there have been some efforts in Congress that try to do something within the parameters of the Constitution not to step on the rights of free speech, and I wanted to focus on a couple of those areas in my questions.
First, Mr. Buchen, I wanted to talk to you. You said something I thought was very important. You said the more information to the public the better, and that they should consider the source whenever these ads are waged, particularly on television and radio. Wisconsin Manufacturers and Commerce, I believe, sponsored these ads. Did you have a disclaimer on your television and radio ads as to who was paying for them?
Mr. BUCHEN. Yes, we did, and that is really an FCC rule that comes into play. They cannot put anything on the air in the way of advertising that does not identify essentially who it is that is sponsoring the ad.
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Mr. HUTCHINSON. And was that any problem to you? Did you mind saying that these ads were paid for by Wisconsin Manufacturers and Commerce?
Mr. BUCHEN. Absolutely not. That is probably a very important aspect of all of this to have some sense of where this is coming from. If you do not, I think it diminishes your message. A completely anonymous ad, which is protected and will continue to be protected, has a diminished message in the sense that people say, ''who is the source of this? Where did this come from?''
Mr. HUTCHINSON. You are making my point for me, Mr. Buchen. I think that that is very important. Let me follow it up with some more questions. You spent about $400,000 on your radio and television ad campaign?
Mr. BUCHEN. Yes.
Mr. HUTCHINSON. Did you have any problem with the public knowing the amount of money that you were spending on radio and television in your ad campaign?
Mr. BUCHEN. We did not and we disclosed that.
Mr. HUTCHINSON. You have also indicated that radio and television, being a public trust and a limited medium, is subject to additional regulation that other elements of speech are not subject to. In regard to your radio ads, did you have any problem disclosing the name of your group as a sponsor of your ad?
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Mr. BUCHEN. We did it because we are required to.
Mr. HUTCHINSON. Did you have any problem in doing that?
Mr. BUCHEN. I am not sure what you mean by did we have any problem.
Mr. HUTCHINSON. Well, did you believe that it infringed upon your right of free speech to say who is sponsoring the ad?
Mr. BUCHEN. In the academic sense, it sure does, and I say that because if anonymous pamphleteering is okay, and you do not have to disclose, as the Supreme Court has said, you do not even have to say in your pamphlet who you are when you get involved with political issues——
Mr. HUTCHINSON. The courts have made a distinction between pamphlets and radio and television which is a limited medium, so I want to talk about radio and television because I agree that anonymous pamphleteering certainly has been more protected, but did you believe that has an unreasonable limitation of free speech to disclose the name of your group in your radio ads.
Mr. CANADY. The gentleman will have 2 additional minutes.
Mr. HUTCHINSON. Thank you, Mr. Chairman.
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Mr. BUCHEN. Yes, I think it is.
Mr. HUTCHINSON. You think that is an unreasonable limitation?
Mr. BUCHEN. I think it is an abridgement of the First Amendment, yes.
Mr. HUTCHINSON. Well, obviously it is some regulation there, I think the question is whether it is reasonable or not.
Mr. BUCHEN. Any abridgement of the First Amendment is unreasonable.
Mr. HUTCHINSON. And, Mr. Bopp, in regard to that question, am I accurate that the courts have not specifically addressed that question on radio and television as to the requirement to disclose the name of the group that is doing the advertisement?
Mr. BOPP. You mean is there a case?
Mr. HUTCHINSON. Well, they have not indicated that violates the First Amendment.
Mr. BOPP. Well, I do not know that we have ever had a law that required that, so I do not know of a case that has targeted radio ads, or tv ads, and said you have to put a disclaimer on it, but I do not see how you can square that requirement with any of the free speech doctrines.
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Mr. HUTCHINSON. Well, 47 CFR 73.1212 directs broadcast stations to require, and people who are putting political ads on the air, to disclose the sponsorship, the name of the group, and so that is a requirement there. Have you all ever challenged that requirement?
Mr. BOPP. No.
Mr. HUTCHINSON. And you comply with that requirement?
Mr. BOPP. Yes, when we do that, and that is a decision that we have made with respect to our advertising that we believe that our message is more effective if we disclose who the messenger is. However, some of our most important documents in our country, the Federalist Papers, for instance, in the midst of the debate over whether or not our very Constitution was going to be adopted, were done anonymously.
Mr. HUTCHINSON. We have already established there is not any problem with anonymous pamphleteering or distribution. We are trying to narrow this down to radio or television, because the courts have held they are a limited public medium and are subject to additional regulation.
Mr. BOPP. But they have also held that the First Amendment applies in full force to television.
Mr. HUTCHINSON. Certainly to content, but there is some regulation that has been upheld with regard to disclosure, for example, of the name of the sponsorship.
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Mr. BOPP. Congressman, those have not been challenged so you cannot say that they have been upheld. You can say that they are on the books.
Mr. CANADY. The gentlemen have 1 additional minute.
Mr. BOPP. What I am saying is that you are regulating content when you require somebody to speak and to speak by saying as part of the message who is sponsoring it. So it is a compelled speech.
Mr. HUTCHINSON. Mr. Dunst, you may or may not know the answer to this, but I believe radio and television stations have a public file in which the amount of expenditures for issue advocacy or campaign expenditures are kept for the public? Are you aware of that?
Mr. DUNST. Yes. Yes.
Mr. HUTCHINSON. And so if a group came in and spent money on radio or television, the amount that is being spent for that advocacy would be available for the public's information.
Mr. DUNST. It would.
Mr. HUTCHINSON. Thank you.
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Mr. CANADY. Thank you, Representative Hutchinson. I will now recognize myself for 5 minutes. Mr. Bopp, in looking at information you have submitted, I see that you have had quite a bit of experience in litigation with the FEC. It also appears to me you frequently have won in the cases you have pursued, or that you have been involved in with the FEC. What has been your experience with the FEC and the FEC's complying with prior court precedence, and in connection with that, what dangers do you see in expanding the scope of the activities of the FEC as some of the proposals that are before the Congress would do?
Mr. BOPP. My experience is really summarized in a larger article that I published that is appended to my testimony, and that is that the Federal Election Commission, as the government agency charged with enforcing Federal election laws, has utterly failed to follow Supreme Court precedent that limits their activities, and that has been going on for more than 20 years now.
One classic example of that is the litigation regarding whether or not express advocacy was the applicable standard when you do an independent expenditure. They fought that in the Supreme Court, in the Massachusetts Citizens case, which was decided in 1986 that yes, they held that a communication had to contain express advocacy in order to be deemed to be an independent expenditure under the law.
Even despite that holding of the U.S. Supreme Court, I litigated with them in the First Circuit for 6 additional years, and over that very issue of whether or not express advocacy was the standard, and it took a decision of the First Circuit and a refusal of cert for them to finally appear to give up on that argument. They have adamantly refused to confine their activity to express advocacy and are constantly—and that is the reason I have been successful in these cases, striking these regulations—they are constantly coming up with new regulations, trying to regulate issue advocacy under some guise or some pretext or some provision of the act, and they keep getting knocked down.
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If we gave them additional authority, and of course what would be the worst thing would be to give them the authority of prior restraint; that is, the ability to go in and seek injunctions just like injunctions that have occurred in these cases, to get an injunction right before an election because then, just think about this, your right to speak or our right to speak is then dependent on the six commissioners of the Federal Election Commission, six political insiders here in Washington.
The most important thing would be, then, who selects the Federal Election Commission because they will ultimately decide the right to speak of everybody, and because you know they go in and get an injunction for ten days, it is very difficult to knock it down, and even if they are completely wrong, you are enjoined, the election occurs, your speech is irrevocably lost.
So the decision of who runs that agency would be the most important decision in our country.
Mr. CANADY. Let me ask you about, going back to the example you gave about partial birth abortion and the debate that was going on about that and the Right To Life involvement in that. What about the various church groups that engaged in that debate on both sides, as a matter of fact. The Catholic bishops were prominent on one side, but other church groups were prominent on the other side of the issue. Under some of the proposals that are before the Congress now, how would the ability of church groups to express a viewpoint on a political issue and to criticize public officials who are taking a particular position on that issue be affected?
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Mr. BOPP. They would be even more dramatically affected than groups such as the ones that are represented here, because the ones that are represented here are 501(c)4 organizations that are, contributions to them are not tax deductible, and they can, under the Internal Revenue Code, engage in some limited actual political activity. But if you talk about a church group, they are under 501(c)3 where contributions to them are tax deductible, and they are completely prohibited from anything that is deemed political.
If, for instance, Congressman Hutchinson's proposal would be adopted where they have to put a political disclaimer because they are advocating an issue, lobbying, doing grassroots lobbying and mention the name of a candidate, they have to put a political disclaimer and then report that, then——
Mr. CANADY. I give myself 2 additional minutes.
Mr. BOPP [continuing]. They would then be in the position not only of being concerned what the Federal Election Commission might do, but they would also be concerned about what the Internal Revenue Service would do in terms of revoking their tax exempt status. So what is deemed to be, or viewed to be political is critical to them because they are barred from that completely, and if you sweep in all this lobbying activity as being deemed to be or being viewed to be political, then the only really choice they would have is not to lobby Congress, you know, in the prohibited period.
Mr. CANADY. Under some of the proposals that have been advanced, how would the ability of wealthy individuals to express their views on the airwaves be affected?
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Mr. BOPP. They would not be affected at all.
Mr. CANADY. A wealthy individual could go ahead as previously, but small groups of people who do not have those resources, but pool their resources to get a message out would be subjected to requirements and restrictions that wealthy individuals acting as an individual would not be subject to.
Mr. BOPP. That is right, and of course they can afford the army of lawyers and all that would be needed to comply with the intricacies of this and to be advised on when they can do it and when they could not. A wealthy individual can pay $25,000 for an ad in the Washington Post; however, most people of average means have to pool their money by joining an organization like National Right to Life, pool that money together, those $25 contributions, get a thousand of those together, and then the organization buys an ad. But because they are a corporation and are subject to prohibitions proposed in McCain/Feingold, defining issue advocacy as prohibited, electioneering by a corporation, well, then these small individuals are simply removed from the democratic process leaving candidates, the press, and wealthy individuals.
Mr. CANADY. Well, thank you, Mr. Bopp. I want to extend the thanks of the whole Subcommittee to each member of this panel. Your testimony has been very interesting and helpful to the Subcommittee. We appreciate it.
Now we will move to our second panel, our second and final panel.
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Thank you for your willingness to participate. First on our second panel, we will hear from Josh Rosenkranz. Mr. Rosenkranz is Executive Director of the Brennan Center for Justice at New York University. Next we will hear from Professor Bradley A. Smith. Professor Smith is an Associate Professor of Law and teaches election law at Capital University Law School in Columbus, Ohio. Then we will hear from Norman J. Ornstein, who comes to us from the American Enterprise Institute for Public Policy Research. Mr. Ornstein, an AEI resident scholar, is also an election analyst for CBS News.
Next to testify will be Don Simon. Mr. Simon is the Executive Director and General Counsel of Common Cause here in Washington, D.C. Finally this morning, we will hear from Professor Joel M. Gora. Professor Gora is Dean of the Brooklyn Law School, and also serves as General Counsel to the New York Civil Liberties Union. We do thank you all for being here, and I would ask that you do your best to summarize your testimony in no more than 5 minutes, and be guided by the light. Without objection, of course, your full written statements will be made a part of the permanent record of the hearing. Mr. Rosenkranz.
STATEMENT OF E. JOSHUA ROSENKRANZ, EXECUTIVE DIRECTOR, BRENNAN CENTER FOR JUSTICE, NEW YORK UNIVERSITY
Mr. ROSENKRANZ. Thank you, Mr. Chairman, Chairman Hyde, Mr. Scott, members of the committee. I am honored to address the Subcommittee on an issue that is of critical importance to the health of our democracy, probably the knottiest Constitutional issue on campaign finance reform that we as a country face, and Congress in particular faces.
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Let me just try and start with some common ground that I think everyone on this panel would agree with, and I have the sense members of the previous panel would agree with. The common ground is that there already is the current Constitutional doctrine a line that has been drawn, that separates one type of speech from another. To avoid loaded phrases like ''express advocacy'' which means different things to different people, lets just call the first category ''electioneering,'' which expenditures in support of speech that advocates the election or defeat of candidates.
Speech on one side of the line is distinguished from speech on the other side of the line in very important ways, three in particular. First, disclosure. The person speaking must disclose the amount spent, and if it is more than one person, the collective must disclose the source of the money.
The second is source restriction. There are certain people, there are certain entities that are flat out muzzled that are not permitted to speak under current Constitutional doctrine: Corporations, unions, foreigners. There are certain words that they are literally not permitted to utter, at least not if it costs more than a penny to utter them.
And the third is fundraising restrictions. If a group wants to pool its resources to get out a message, and its message falls on the ''electioneering'' side of the line, they cannot put unlimited funds into the message. They are limited to raising their money in discrete amounts. Now, this is bedrock, black letter Constitutional law that no one can disagree with.
Does it restrict speech? Does it restrict the right to privacy? Absolutely. There are entities that literally cannot speak particular messages. There are entities that have to turn over their funder list if they engage in particular speech. But it is Constitutional, and the Supreme Court has upheld it. It has been the law for 90 years, for example, as to corporations.
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So the real critical question for us in today's panel and for Congress and legislators is where the line is drawn. And it is a critical question because it has such profound consequences. If you cast the net too broadly, obviously you end up limiting speech that is very important, without having an important, compelling reason for doing so. If you draw the line too narrowly, you end up making a complete mockery of the election laws. And that is where we are right now. We are left with a complete mockery.
Rather than belabor the national scene, let me just focus very quickly on the case study that has been before you this morning, the Wisconsin cases I should say, in the interest of full disclosures that I actually represent some of the candidates, the candidates who are challenging what WMC did.
Now, let us be clear about what happened in Wisconsin. WMC was not educating the public about an important set of issues that were critical to the public. WMC was engaging in electioneering. It was targeting six candidates. It shifted its message on what issues were important depending on what resonated with the public in that area, and where the candidates were weak. It used corporate money that it could not have used to issue a slightly different message that said vote for or vote against.
WMC did not run a sustained public education campaign. It decided that the public needed to be educated in the week or so before the election, and the public's need to understand these issues stopped suddenly on election day.
Some of the witnesses on this panel and the earlier panel will tell you that we are stuck with this Constitutional regime in which it is permissible to regulate electioneering, but we can only do it in a way that completely hobbles campaign financing laws.
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Our position at the Brennan Center is that we are not stuck in that box, that the Supreme Court makes practical distinctions and that the Congress and the legislators across the nation are entitled to legislate in a way that absolutely obeys First Amendment requirements, but still reaches a practical result. Thank you.
[The prepared statement of Mr. Rosenkranz follows:]
PREPARED STATEMENT OF E. JOSHUA ROSENKRANZ, EXECUTIVE DIRECTOR, BRENNAN CENTER FOR JUSTICE, NEW YORK UNIVERSITY
Mr. Chairman, I am honored to have been invited to testify before the Subcommittee about an issue that lies at the heart of efforts to invigorate our democracy.
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. It is no accident that we chose as our first Legal Director, Burt Neuborne, one of the most renowned advocates of civil liberties, who rose to prominence as the longtime National Legal Director of the American Civil Liberties Union, or that several other lawyers on our staff have spent their careers fighting for civil liberties in many contexts, including at the ACLU. Given our namesake and our backgrounds, 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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Any attempt to stanch the flow of money into politics raises difficult constitutional questions. None are thornier than the issues that are before this Subcommittee today—defining the permissible line dividing speech that is regulable from speech that is not. On the one hand, we have a duty to protect our democracy from corrosive influences, to encourage good candidates to run, to enhance the competitiveness of elections, and to fulfill the constitutional mandate of one-person-one-vote. On the other hand, in accomplishing any of these goals, we need to be sure that we do not trammel our cherished freedom of speech, that we do not choke off the funds necessary to communicate a message to a wide audience, and that we allow multiple voices to flourish and clash.
These interests are not easy to balance. But the Supreme Court has provided some guidance. Let me start with a principle that is undisputable: Under current law, Congress is constitutionally permitted to draw some line distinguishing two types of speech. On one side of the line is some category of speech directed at advocating the election or defeat of clearly identified candidates. In the interest of trying to find a neutral phrase that carries no baggage, let's call it ''electioneering,'' without defining for the moment exactly what falls on that side of the line. Maybe it is ''magic words'' (such as ''vote for'' or ''vote against'') maybe it is something broader. But we all agree that some line is permissible.
If speech falls on the ''electioneering'' side of the line, we all agree, three consequences
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.
We may not all like these rules, but this is black letter constitutional law about which none of us can disagree.
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 undisputably 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 clearly and emphatically upheld all these restrictions. The corporate restrictions were reaffirmed as recently as 1990, in Austin v. Michigan Chamber of Commerce. In that case, the Supreme Court upheld a law banning corporations from engaging in electioneering. Significantly, the Court rebuffed a challenge launched by a Michigan corporation that was identical to Wisconsin Manufacturers & Commerce, which is testifying here today.
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So, to reiterate, our point of departure is a constitutional regime that permits a legislature to draw a line between electioneering and other speech and that permits us to regulate electioneering in a way that does infringe somewhat on speech and privacy rights. The question before this Subcommittee—the question that is presented in the Wisconsin cases that have received much attention today—is where exactly the line is between electioneering and other speech.
A lot 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.
That is where we find ourselves today. We are now in a world where everyone has gotten 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 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 crow 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.
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The Wisconsin cases perfectly illustrate the point. (Here, in the interest of full disclosure, I should mention that I am representing the candidates who are challenging WMC's spending in court.) WMC, a corporate group funded entirely by corporate money, set out to spend hundreds of thousands of dollars on advertising directed at delivering the State Legislature to Republican control. WMC targeted five Democratic candidates who were considered vulnerable. It set out to swamp the airwaves with ads, almost all of which were visciously negative. The ads were to run in the last week or two before the election. The ads were indistinguishable from campaign ads. But they did not use the words ''vote for'' or ''vote against,'' phrases that rarely adorn even the advertisements that candidates themselves run.
Let's make no mistake about these ads. They were not intended to educate, nor did they educate, Wisconsin voters about a particular issue or set of issues of importance to Wisconsin voters. WMC did not compare candidates to one another on a series of important issues or critical votes. WMC chose different issues to highlight in different races, depending upon what would resonate with voters in that area and what vulnerabilities the candidate had. WMC did not try to educate all voters in Wisconsin, but ran the ads only in certain media markets—where the vulnerable candidates were running—including a market that was as likely to hit residents of Illinois as it was to hit Wisconsin voters. WMC did not run a sustained public education campaign, but targeted the days shortly before the election and decided that the need to educate voters ended abruptly on Election Day. And WMC did not offer any solution, view, or plan of action. It simply urged voters to call the targeted candidate—at the switchboard of the Legislature—a day or two before the election, when one could be quite sure no candidate could be reached.
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Some of today's witnesses tell us we are stuck with a constitutional doctrine that nominally allows us to preclude WMC from electioneering, but that protects WMC's right accomplish the same result through naked subterfuge. What they fail to acknowledge is that there is nothing particularly magical about the ''magic words'' test. When the Supreme Court declared that it is permissible to infringe on the right of corporations or labor unions to engage in electioneering, it was not because there was something particularly nefarious or corrosive about the words ''vote for,'' ''vote against,'' ''elect,'' or ''defeat.'' It was because the Court considered corporate and union funding of elections to present particularly strong potential for corrupting politics and skewing elections. In my view, we are not stuck with any such wooden formulation. The range of options is much narrower than most reformers are willing to accept, but the Supreme Court need not stand by a rule that could be so readily bypassed as to be worthless.
We are navigating between the Scylla and Charybdis of two very complicated constitutional doctrines. The first doctrine—void for vagueness—says the government cannot punish someone without providing a sufficiently precise description of what is legal and what is illegal. The second doctrine is the overbreadth doctrine. Even a clear test that everyone understands could nevertheless be unconstitutional because it prohibits too much protected speech.
Before I go any further in describing these principles let me offer a quick aside. These two doctrines are at their most critical application, when it comes to prohibitions on speech—the source restrictions and the fundraising restrictions, which are treated under the law as direct limits on speech. Disclosure, however, does not involve a prohibition of speech. It involves a compelled revelation of information. When legislation does not proscribe speech, there is less of a concern about either chilling or vagueness.
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The Supreme Court has made clear that the governmental interests that justify disclosure are broader than the governmental interests that justify restrictions. The Supreme Court has recognized, for example, that the public has a general ''informational interest'' in knowing who is supporting particular candidates. And the Supreme Court has accepted that disclosure is necessary to ensure that speakers do not evade otherwise valid restrictions. For example, I think most people agree that this would be a violation of the law: Candidate Jones says to his biggest supporter, ''Do me a favor, take my campaign ad, strip off the words, ''vote for'' or ''vote against'', and buy $100,000 worth of air time.'' Unless we have some way of knowing who ran or paid for the ad, there would be no way that we could detect the violation.
So, my first observation is that a legislature could readily sever the rules governing disclosure from the rules governing restrictions, casting a wider net around around speech whose source and financing must be disclosed. Obviously, the government may not issue a blanket rule prohibiting all anonymous speech, but there is no constitutional objection to a rule requiring full disclosure for anyone who pays, say $10,000 or more, for speech in an election year that refers to a clearly identified candidate for office.
Now, back to the restrictions, where it is much tougher to navigate through Scylla and Charybdis. When the Supreme Court first devised the ''express advocacy'' test, it did so in the context of a statute that regulated any expenditure ''relative to a clearly identified candidate.'' That was an extraordinarily broad phrase, and the Court saved it from invalidation by reading it very narrowly. The Court never said that no legislature could ever devise alternate language that would be both sufficiently narrow and sufficiently precise.
So where is the latitude? Even when it comes to speech, the Supreme Court has approved of lines that are not particularly clear. The line between obscenity (which can be criminalized)and protected pornography (which cannot) depends on extraordinarily subjective factors such as whether the speech is ''utterly without redeeming social value.'' There is no magic words test in the obscenity context. Or should I say, ''magic images'' or ''magic acts''?
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Even in the context of core political speech, there are lines that do not depend upon magic words of any sort. In the context of union elections, for example, employers are permitted to make ''predictions'' about the consequences of unionizing but they may not issue ''threats.'' The courts have developed an extensive jurisprudence to distinguish between the two categories, yet the fact remains that an employer could harbor considerable uncertainty as to whether or not the words he is about to utter are sanctionable. The courts are comfortable with that uncertainty—even in the context of core speech about a very important issue of public policy—because they have provided certain concrete guidelines.
There are many model provisions that provide the requisite level of certainty without cutting out too much speech that truly is not electioneering in nature. A test that offers a series of objective, measurable factors, is one example—factors such as the level of spending, the timing of the advertisement, and the proportion of the ad directed at a single identified candidate. The best way to guard against both vagueness and overbreadth challenges—a technique the Court has accepted repeatedly—is to adopt a test that incorporates an intent requirement—a purpose test. That element that was absent in the ''relative to'' language that the Supreme Court insisted on narrowing. If a statute prohibits speech only if this speaker's ''primary purpose'' was to influence voters to elect or defeat a clearly identified candidate, the speaker cannot possibly complain he did not know what his primary purpose was. Nor can he complain that the statute prohibits activity that ought to be protected—because the Supreme Court has already concluded otherwise. To make the statute even more protective, one could readily add a dollar threshold (protecting all spending below, say, $10,000) or a heavier burden of proof (such as ''clear and convincing evidence'') or both.
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I would challenge any detractor to demonstrate with a concrete example how this test cuts off speech—or speakers—whose message ought to be fully protected as non-electioneering. As to overbreadth, try to imagine one reasonably plausible example of a protected ad that would fail this test. Harry and Louise ads and NAFTA ads, plainly directed at influencing legislative conduct, are undoubtedly far outside this test—whether because they typically do not involve a clearly identified candidate, or because the speaker could readily convince the factfinder that the primary purpose was plainly not electioneering. The same is true of the stories about cases that the ACLU fought a generation ago, where people who were plainly engaged in issue advocacy were prosecuted under much more sweeping provisions. If an advocate's real goal is to advocate against the Vietnam War, then he will readily satisfy the test—even if he mentions Richard Nixon. If the advocate takes out a full page newspaper advertisement advocating Nixon's impeachment, the government will have a hard time proving that his goal is to influence the election. As to vagueness: It is the rare speaker who would spend thousands of dollars on an advertising campaign without being clear on his intent. A corporate speaker that spends a fortune pressing a message that he intends to influence an election cannot complain that he has been blind-sided by a law that prohibits spending with that intent.
This solution may not be the definitive answer to the difficult policy question. Others have developed approaches that might work better. State and local legislatures should experiment with approaches that strike different balances. Wisconsin's approach is a valuable step in the right direction, inasmuch as it understands that the Supreme Court tries to ground its constitutional rulings in practical reality. The Court does not purposely permit governments to regulate in an area but impose rules that make the regulation worthless.
Mr. CANADY. Thank you. Mr. Smith.
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STATEMENT OF PROFESSOR BRADLEY A. SMITH, ASSOCIATE PROFESSOR OF LAW, CAPITAL UNIVERSITY LAW SCHOOL
Mr. SMITH. Thank you, Mr. Chairman. I appreciate the opportunity to be here today, members of the Committee.
This is not a difficult case. The bills that are before the House of Representatives that attempt to regulate issue advocacy are unconstitutional. The lines have already been drawn. They have been drawn in Buckley, and all the various things that are raised as issues why Buckley should not be applicable or should be changed were in fact addressed in Buckley and anticipated in Buckley.
We are not dealing with the law as we might want it to be: we need to deal with the law as it is, and with the Constitution as it is. Buckley struck down a law limiting any expenditure ''relative to a clearly identified candidate,'' under a statute that would have limited any expenditure relative to that, and Buckley noted that in doing so, the distinction between issues, or discussion of issues and candidates, and the advocacy of election or defeat of the candidates may often dissolve in practical application. There is no doubt that they anticipated issue ads would come into play.
In fact, one reason why Buckley held that there could not be spending restrictions on independent express advocacy ads was because the express advocacy ads were limited by the original FECA, by the Federal Elections Campaign Act, only to try to prevent what Congress viewed as end-running the direct contribution limit. The court noted it would naively underestimate the ingenuity and resourcefulness of persons or groups desiring to buy influence, to believe that they would have much difficulty devising expenditures that skirted the restriction on express advocacy of election or defeat, but nonetheless benefit a candidate's campaign.
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In other words, they recognized that you could do issue advocacy that would have the same effect of getting added money in there affecting an election, but issue advocacy was protected, and therefore there was no point in limiting expenditures, independent expenditures, of direct advocacy.
The Court also anticipated the desire that we see now in bills such as Shays-Meehan and most of the other bills before the House, all the other bills before the House that would attempt to limit this, to define it in terms of a reasonable man or a reasonable person or to use some other application like that. The Court said that you could not do that, and they said specifically, ''no speaker in such circumstances safely could assume that anything he might say upon the general subject would not be misunderstood by some.''
''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 whatever inference may be drawn as to his intent and meaning.''
''Such a distinction offers no security for free discussion.''
There is nothing new in any of these bills, and there is nothing that was not addressed in the Buckley decision.
Now, some of the things that Mr. Rosenkranz suggests I think point up exactly the problem here. He says about the Wisconsin matter of which you have heard testimony, ''well, they were not trying to educate voters, they ran the ads right before the elections.'' Seems to me that is the time that you most want to educate voters. He criticizes them in his prepared testimony, saying that they ran some ads on stations that carried to more residents in Illinois than in Wisconsin, so they must not have been trying to educate Wisconsin voters, but it seems to me that that shows they were indeed trying to educate voters, and less concerned perhaps, about exactly where the votes were.
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The idea that you should have to continue running ads past election day, the idea that you should have to run ads in an entire state at one time and not merely in districts, I do not know where these come from. They are not in my First Amendment, and they are not carved out as exceptions in Buckley v. Valeo. So this kind of talk is really just drawing a line that does not exist, and to suggest that we can get around this by saying, ''well, we have to look at the person's intent'' is no good because again, who is going to decide what the person's intent is. Unless the law says ''whatever the speaker's stated intent is governs whether or not his comments were intended for the primary purpose of affecting the election,'' you are right back into the uncertainty that the court rejected in Buckley.
As long as someone else is going to make that decision about intent and as Mr. Scott said earlier, we know the people making that decision will in fact be the people who were criticized in many cases by the speech that was made—that is too vague to survive Buckley.
The other types of restrictions that we have talked about are not just restrictions the court put on willy-nilly. For example, when one says, ''well, it does not violate free speech to limit corporate contributions,'' the Supreme Court has dealt with that issue in Austin v. Michigan Chamber of Commerce, and they note that the corporations are unique creations of the state. Corporations do not exist but for the state, and the state has given corporations certain advantages which allow them to amass large sums of wealth, and therefore as the states could take that away, that they can do something to limit some of the effect of that type of speech, but that does not apply to individuals speaking. It does not apply to groups such as National Right to Life or Sierra Club or Handgun Control that would speak.
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I would call your attention to the ads that are set forth in Mr. Bopp's testimony, page six of his testimony, on the advertisement that appeared in Wisconsin. You just heard from him about it, and his prepared testimony gives the exact language of the ads. Then I would call your testimony to something which I did not copy today so I cannot give you copies at this moment, I have one copy, but you can look this up. It is a press release of May 14, 1997. You can find it on the Common Cause web page.
It says almost exactly what is in the Wisconsin ad. It says, ''The biased and rigged Campaign Finance Reform Hearing opening in the Senate Rules Committee today are a total sham,'' and it goes on to use almost exactly the same language as the Wisconsin case. I presume that Common Cause would not view that as something that would be barred by issue advocacy.
Again, this is an easy case for this committee, and it should be easy case for Congress. Thank you.
[The prepared statement of Mr. Smith follows:]
PREPARED STATEMENT OF BRADLEY A. SMITH, ASSOCIATE PROFESSOR OF LAW CAPITAL UNIVERSITY LAW SCHOOL AND ADJUNCT SCHOLAR, THE CATO INSTITUTE
Thank you, Mr. Chairman and Members of the Subcommittee for inviting me to testify before you today. My name is Brad Smith. By way of introduction, I am an Associate Professor of Law at Capital University Law School in Columbus, Ohio, where I teach, among other subjects, Election Law. Though I appear today on my own behalf, I am also an Adjunct Scholar of the CATO Institute. I have researched and written extensively, in both academic and popular journals, on the subject of campaign finance.
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Discussions of the constitutionality of campaign finance regulation must necessarily begin with a review of the Supreme Court's landmark decision in Buckley v. Valeo, 424 U.S. 1 (1976). It is often said that Buckley equates money with speech. This is not bad as everyday shorthand, but as shorthand, it does not do justice to the true holding of Buckley. What Buckley actually says is not that money is speech, but that the expenditure of money is necessary to effective speech. Limits on monetary expenditures limit speech. Though controversial in some esoteric circles, for most people this is such common sense that we tend not to even think of it. We would all recognize that a law limiting newspapers to spending $1000 per year—or even $1000 per day—would force most daily newspapers to cease publication, and that this would be an unconscionable violation of the First Amendment. Similarly, a law limiting television networks to expenditures of just $1000 per day would violate the First Amendment by effectively shutting off speech. This is true even though—in fact, especially because—newspapers and television stations and networks routinely editorialize on political issues; endorse candidates for office; slant news coverage to promote issues and, implicitly, candidates viewed as important; and give column space, or, in the case of television stations, air time, worth literally hundreds of thousands of dollars, to political parties, candidates, and issues. But even the most mundane political activities, such as publishing a flyer to distribute at a county fair; or purchasing a megaphone to use at a public rally; or traveling somewhere to give a speech; require the expenditure of money. The link between the expenditure of money and speech is unassailable. Because of this link, the Supreme Court, in Buckley, made clear that any restrictions on the expenditure of funds—including limitations on issue advocacy—must be subject to the strictest judicial scrutiny for First Amendment violations.
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In fact, Buckley v. Valeo dealt directly with the question of regulating what are now called ''issue advocacy'' advertisements. It is often forgotten that in the 1974 Amendments to the Federal Elections Campaign Act, Congress sought to limit issue ads, just as many do now. Section 608(e)(1) of the 1974 FECA Amendments provided that, ''[n]o person may make any expenditure . . . relative to a clearly identified candidate during a calendar year which, when added to all other expenditures made by such person during the year advocating the election or defeat of such candidate, exceeds $1000.'' The Court noted that ''the plain effect of Section 608(e)(1) [limiting issue advocacy] is to prohibit all individuals, who are neither candidates nor owners of institutional press facilities, from voicing their views. . . . The use of so indefinite a phrase as ''relative to'' a candidate fails to clearly mark the boundary between permissible and impermissible speech . . .''
Many who now clamor for regulation of issue advocacy argue that such ads can and do effect elections, sometimes even calling them ''thinly veiled campaign ads.'' But the Supreme Court was not oblivious to this possibility when it decided the Buckley case. In fact, the court specifically rejected that argument, writing:
[T]he 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 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. . . .'' Buckley v. Valeo, 424 U.S. at 42.
Thus, even though issue ads might affect elections, this alone is not sufficient to justify the chilling effect that regulation of issue ads has on political speech.
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Furthermore, the Court went on to note that regulation of issue ads, and specifically the meaning of the phrase, ''relative to . . . a clearly identified candidate'' could not be saved by looking at other manifestations of the speaker's intent in an effort to determine if the ads were ''really'' campaign ads. This would do nothing to take away the chilling effect of such regulation, and might even make the burden of the regulation worse. In the Court's words:
Whether words intended and designed to fall short of invitation would miss that mark is a question of both intent and of effect. No speaker, in such circumstances, safely could assume that anything he might say upon the general subject would not be misunderstood by some . . . 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 v. Valeo, 424 U.S. at 43, quoting Thomas v. Collins, 323 U.S. 516 (1945).
Thus, the Court concluded, ''[C]onstitutional deficiencies can be avoided only by reading Sec. 608(e)(1) as limited to communications that include explicit words of advocacy of election or defeat of a candidate.'' The Court explained that, ''[t]his construction would restrict the application of Sec. 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,' [and] 'reject.' '' Buckley, 424 U.S. at 43–44 and fn. 52. The distinctive feature of the issue ads that Congress now seeks is regulate is specifically that they do not include such words of ''express advocacy.''
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In the years since Buckley was decided, both the Supreme Court and lower courts have, time and time again, reaffirmed the reasoning and holding of that decision as it pertains to express advocacy. See e.g. FEC v. Massachusetts Citizens for Life, Inc. 479 U.S. 238 (1986); Maine Right to Life Committee v. FEC, 98 F.d 1 (1st Cir. 1996); Faucher v. FEC, 928 F.2d 468 (1st Cir.), cert. den. 502 U.S. 820 (1991); FEC v. Long Island Tax Reform Immediately Committee, 616 F.2d 45 (2nd Cir. 1980)(en banc); FEC v. Survival Education Fund, No. 89 Civ. 0347, 1994 WL 9658 (S.D.N.Y. 1994), aff'd in part and rev'd in part on other grounds, 65 F.3d 285 (2nd Cir. 1995); FEC v. Christian Action Network, Inc., 92 F. 3d 1178 (4th Cir. 1996); FEC v. Furgatch, 807 F.2d 857 (9th Cir.), cert. den. 484 U.S. 850 (1987); FEC v. Colorado Republican Federal Campaign Committee, 839 F. Supp. 1448 (D. Co.); rev'd on other grounds, 59 F.3d 1015 (10th Cir.), vacated on other grounds, 116 S. Ct. 2309 (1996); FEC v. National Organization for Women, 713 F. Supp. 428 (D.D.C. 1989); FEC v. American Federation of State, County, and Municipal Employees, 471 F. Supp. 315 (D.D.C. 1979). No federal appellate court has ever suggested that this analysis is incorrect as a matter of constitutional law.
In fact, so clear is the constitutional precedent in this area that the United States Court of Appeals for the Fourth Circuit recently took the extraordinary step of ordering the FEC to pay the legal fees incurred by the Christian Action Network (C.A.N.) in defending itself from an FEC lawsuit. The FEC had attempted to fine the C.A.N. for issue advertising, arguing that the C.A.N.'s ads constituted campaign ads even though they did not include words of ''express advocacy.'' FEC v. Christian Action Network, Inc. 1997 U.S. App. Lexis 6477 (April 7, 1997). In a stinging rebuke to the FEC, the court concluded, ''In the face of the unequivocal Supreme Court and other authority discussed, an argument such as that made by the FEC in this case, that 'no words of express advocacy are necessary to expressly advocate the election of a candidate,' simply cannot be advanced in good faith . . . much less with 'substantial justification.' . . . The First Amendment forbids the regulation of our political speech under such indeterminate standards.'' Express words of advocacy, the court emphasized, ''are the constitutional minima.'' Id.
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Constitutionality of Current Proposals
With this Constitutional background in mind, let us look at some of the bills proposed in this Congress to regulate ''issue advocacy.''
The Shays-Meehan bill, originally H.R. 493, now H.R. 1776 and 1777, attempts to limit expenditures for:
''a communication . . . that refers to a clearly identified candidate, that a reasonable person would understand as advocating the election or defeat of the candidate, and that is made within 30 days before the date of a primary election . . . or 60 days before a general election . . .
. . . [or] that a reasonable person would understand as advocating the election or defeat of the candidate, and that is made before the date that is 30 days before the date of a primary election, or 60 days before a general election, and that is made for the purpose of advocating the election or defeat of a candidate, as shown by one or more factors such as a statement or action by the person making the communication, or the use by the person making the communication of polling, demographic, or other similar data relating to a candidate's campaign or election.'' HR 493, Section 251(b).(see footnote 22)
Is this any more clear than the standard struck down in Buckley, which limited ''expenditures relative to a clearly identified candidate . . . advocating the election or defeat of such candidate?'' If anything, it is even more vague and intrusive, attempting, as it does, to ascertain the motives of the speaker through a government inquiry and interpretation of past statements and actions. This would have a double chilling effect on speech, for not only the speech at issue, but past speech, would become relevant to the determination of a violation. As we have seen in Buckley, the Supreme Court specifically held that such a vague standard as ''relative to . . . a candidate'' cannot be made Constitutional by reference to the subjective interpretation, by government officials, of various other actions and statements by the speaker: ''No speaker, in such circumstances, safely could assume that anything he might say upon the general subject would not be misunderstood by some . . . the supposedly clear-cut distinction . . . puts the speaker at the mercy of the varied understanding of his hearers and consequently of whatever inference may be drawn as to his intent and meaning.'' Buckley, 424 U.S. at 43.
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We can also compare HR 1776 and 1777 to the FEC rule struck down and sanctioned in Christian Action Network. That rule attempted to limit an expenditure which:
''[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) 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 actions to elect or defeat one or more clearly identified candidate(s) or encourages some other kind of action.'' 11 C.F.R. Section 100.22(b).
The FEC rule, struck down by the courts, at least required that the communication be ''unambiguous'' and ''unmistakable,'' and that ''reasonable minds could not differ,'' all standards more stringent than that included in the Shays-Meehan proposal. Yet, the Rule was not only struck down, but the court found the FEC's position so obviously unconstitutional that it took the extraordinary step of ordering the FEC to pay the Christian Action Network's legal fees.
To take another example of language attempting to limit issue ads, HR 600 defines express advocacy as ''when a communication is, taken as a whole and with limited reference to external events, an expression of support for or opposition to a specific candidate, to a specific group of candidates, or to candidates of a particular party.'' HR 600, Sec. 201. Comparing this to the standards struck down in Buckley and Christian Action Network, can anyone doubt that this language is also too vague to pass constitutional muster? Like HR 1776–1777, it even lacks the certainty of the unconstitutional FEC rule.
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What the regulators seem to have lost sight of is the fact that politics is about the discussion of issues, and candidates' positions on issues. It is the heart of the First Amendment for individuals and groups to discuss issues and criticize officials. It is all but impossible to talk politics for long in this country without mentioning the individuals holding or seeking office. Or, as the Court said in Buckley, ''Candidates, especially incumbents, are intimately tied to public issues. . .'' We will not have a free society for long if government officials are empowered to prohibit some from speaking on the rather bizarre ground that their speech consists of ''campaign endorsements or attacks,'' while determining that others can speak because their speech ''genuinely debate[s] issues,'' to use the words of two prominent reformers writing recently in the Washington Post. It is precisely that type of distinction and government censorship which the First Amendment aims to prevent.
Disclosure of Issue Advocacy
If it is clear that issue ads—or, we might say, political discussion—cannot be banned consistent with the First Amendment, some have suggested that at a minimum it could be forcibly disclosed. This is the approach taken by HR 2183, the so-called ''freshman'' proposal, and in the so-called ''Blue Dog'' proposal floated this summer. Unfortunately for the sponsors of these bills, but fortunately for the political and speech rights of the American people, this approach also runs directly afoul of recent Supreme Court precedent.
In McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995), the Supreme Court affirmed that individuals have a constitutional right to engage in anonymous political discussion and advertising. The reason should be so obvious as not to need explication: people may feel chilled, if not prohibited, in criticizing their government if they feel that that government may use its power to retaliate against them. McIntyre ties together two long-standing strands of First Amendment jurisprudence: the right to anonymous leafleting, see Talley v. California, 362 U.S. 60 (1960)(the right to anonymous publication is necessary because ''exposure of the names of printers, writers, and distributors would lessen the circulation of literature critical of the government''); and the right of organizations to protect members from disclosure that could lead to political retaliation and harassment, see NAACP v. Alabama, 357 U.S. 449 (1958).
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If disclosure of spending on issue ads, i.e. political discourse, were required, how would it be enforced? It could only be enforced by requiring citizen groups to respond to the demands of federal officials for information regarding the times, places, amount, and manner of speech. And it would have the same chilling effect on speech that led the Supreme Court to strike down limits on issue advocacy in Buckley. For in order to determine if a communication was intended to ''influence public opinion'' (the standard used in H.R. 2183) and therefore subject to disclosure, it would be necessary for federal officials to examine the communication under much the same vague standards as those that HR 1776 and 1777 would use to ban all issue ads. After all, most speech is, to some extent, intended to influence public opinion. The ensuing chilling effect on speech makes such forced disclosure unconstitutional. Nor can this approach get around McIntyre, NAACP v. Alabama, and Buckley by being called ''lobbying disclosure.'' The effort is disingenuous on its face—communications to the public have never been considered lobbying, and because they aren't directed to the legislators, it is difficult to see how they could be. Furthermore, the disclosure would apply to speech that mentions candidates who are not incumbents. One can hardly lobby someone who does not hold office.
It is, of course, frustrating for candidates to find their record and views attacked in ways that may seem distorting and unfair. Similarly, it may seem unfair to be locked in a political race only to have large expenditures made attacking one's positions on an issue. But this is the nature of politics. And the First Amendment exists to prevent the government from attempting to determine ''legitimate'' from ''non-legitimate'' commentary on public issues. As one commentator has noted, no nation has ever succeeded in creating a ''benign political police.''
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Soft Money
A topic much related to ''issue advocacy'' these days is that of ''soft money,'' that is, unrestricted contributions made to political parties for party building activities. Whenever the subject of ''soft money'' comes up, I begin by noting that an effort was made to ban soft money in the 1974 FECA Amendments, and the 1976 elections were conducted without soft money. This created a shortage of cash for state and local parties, which caused a sharp decline in traditional political activity such as rallies, printing of bumper stickers, buttons, and yard signs, and get-out-the-vote drives. Thus, FECA was specifically amended in 1979 to allow for soft money contributions to the parties. We need to remember this when people talk about banning or limiting soft money. What alleged evil are people after? Do we want to deprive local parties of funds to conduct voter registration drives or get-out-the-vote drives? Stop local parties from printing slate cards, linking a party's candidates together? Or stop them from printing bumper stickers and yard signs, or providing transportation to the polls for elderly voters, or holding rallies? I think not.
I suggest that the current emphasis on banning or sharply curtailing soft money comes entirely from the extensive use of soft money to fund party sponsored issue advocacy campaigns in the 1996 elections. However, political parties have as much right as other entities to run issue ads. See FEC v. Colorado Republican Federal Campaign Committee, 116 S. Ct. 2309 (1996)(holding that political parties may engage in independent expenditures). If party-sponsored issue ads are protected by the Constitution, what point is there in limiting soft money, unless we do want to restrict funding for get-out-the-vote drives and the like? May I suggest that there is none.
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Furthermore, to the extent that candidates dislike issue ads and independent expenditures because they cause the candidate to lose control of the campaign message, efforts to prevent party sponsored issue ads by drying up the supply of soft money will make the situation worse. Why? Because people who now give to the parties to take their message public will simply resort to running independent issue ad campaigns. These independent campaigns are, I think, more likely to be negative or distorting than party run ads.
But it really doesn't matter, because efforts to ban or limit soft money contributions for issue ads are probably unconstitutional in any event. As Colorado Republican Federal Campaign Committee makes clear, political parties have the same rights in the political arena as other groups. Thus, like other groups, they have a right to raise unrestricted funds for the purpose of airing issue ads. Limiting soft-money, then, if it is constitutional at all, which I doubt, will only dry up funds for activities that are arguably less speech related, such as the voter registration drives, slate cards, and other activities that almost every rational observer supports.
If you want to limit issue ads, the best, and perhaps only Constitutional approach, is to raise the limits on direct contributions to candidates. It is since those restrictions were put on 23 years ago—and never adjusted even for inflation—that groups have turned increasingly to independent issue ads to persuade the public of their views. Raise the limits on direct contributions, and some donors may again decide that giving money to the candidate is a more effective means of spreading their political views. Or, to put it another way, perhaps we should return to the system of free elections under which this country grew into the world's greatest democracy, fought and won two world wars, passed the great civil rights legislation of the 1950s and 1960s, and generally prospered.
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Public Opinion
Finally, I would like to say a brief word about public opinion on this issue. Polls are frequently released allegedly showing broad public support for such things as restrictions on soft money and issue advertising. Of course, as the members of this subcommittee well know, one purpose of the Constitution is to protect our fundamental rights from the ebbs and flows of public passion. But leaving that aside, I think that such polls are terribly flawed, and I would warn this Congress that if it were to actually pass the restrictions on issue advocacy under consideration, it would unleash a firestorm of hostile public reaction.
Consider, for example, one highly publicized poll released this summer by the reform group the Center for Responsive Politics. Supposedly, 70% of respondents favored limiting how much a candidate could spend on his or her own campaign; 75% favored limiting soft money; 71% favored limiting TV ads; 85% favored limiting out-of-district contributions; and 61% favored banning PACs. Yet, oddly enough, in that same poll, 47% favored lifting all restrictions on campaign contributions. Clearly, then, the public is somewhat confused, as the total of those favoring more restrictions and those favoring the abolition of all restrictions substantially tops 100%. You cannot lift all restrictions on contributions and still have restrictions. For more than 25 years groups such as Common Cause, the Center for Responsive Politics, the League of Women Voters, Public Citizen, ACORN and PIRG, along with huge foundations such as the Schuman Foundation, the Pew Charitable Trust, and the Joyce Foundation, have spent millions, virtually unopposed, attempting to convince the public of the merits of such regulation. Their efforts have had virtually unanimous support in the institutional press, which would not have its speech limited by the proposed reforms. Given this, the fact roughly half the public favors scrapping all regulation of the system is truly remarkable.
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In fact, when the heated rhetoric is stripped away, the public remains strongly in favor of free political speech. For example, the aforementioned Center for Responsive Politics poll suggests that a substantial majority of Americans would like to ban PAC contributions. Similarly, a recent poll by the independent Tarrance Group found that roughly 60% favor a PAC ban. But when the long-vilified term ''PAC'' was dropped, 64% believe that ''a group of people who have a common purpose or belief can pool small contributions to help elect political candidates who share their views,'' with just 29% disagreeing. That, of course, is the definition of a PAC. Why this difference? The Tarrance Poll gives a clue. Fewer than half of respondents considered themselves members of a ''special interest.'' Yet, when asked about their personal memberships and affiliations, 75% stated that they were members of groups, such as unions, single-issue groups such as the NRA or Handgun Control, Inc., or broad ideological or membership groups of the type that engage in issue ads and political expenditures.
When the public understands what is at stake—i.e., that it is their voices, and the voices of their neighbors, that will be silenced, their perception, I suggest to you, changes dramatically and radically. Just last week I was on a Florida radio phone-in show along with the local Common Cause representative. I described the threat to the First Amendment posed by campaign finance regulation, and the gentleman from Common Cause stated that it was not their aim to reduce political speech. It would be perfectly alright, he said, for individuals and groups to spend whatever they like on advertisements discussing candidates and issues, but they should not be able to make contributions to candidates. This man, a local representative for the reform movement, honestly believed that HR 1776 and 1777, being promoted by his organization, would not limit issue advertising, to the point that he suggested that this was why restrictions on contributions to candidates were not objectionable. I pointed out that limiting independent advertisements discussing candidates and issues was exactly what the reformers, including Common Cause, are seeking to do in this Congress, through bills such as HR 1776 and 1777 and its Senate counterpart, the ''McCain-Feingold'' bill. When callers to the show discovered that these efforts would limit advertisements and scorecards describing candidates views on issues, they became livid. When we talk about limiting issue ads, we are not talking about silencing the other guy: we are talking about silencing ourselves, and the public doesn't like it.
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In short, the notion being spread by reformers, of some broad public support for these types of regulatory proposals, is a big con job. If the types of proposals being discussed here today pass, when the public understands what has happened there will be a serious voter reaction. And one reason is because Americans do treasure their First Amendment rights, and they do believe that their representatives should take seriously their oath to uphold the Constitution. In fact, in the Tarrance Group poll I've mentioned, 86% of respondents said that they would be less likely to vote a member of Congress or Senator who had voted for campaign finance reforms which were unconstitutional. So the public is hardly interested in reform at any price. And, as I have shown today, efforts to ban or curtail issue advocacy, such as those found in HR 1776–1777 and many other bills now before the House, are quite clearly unconstitutional.
Thank you for this opportunity to speak to you today.
Mr. CANADY. Thank you, Professor Smith. Mr. Ornstein.
STATEMENT OF NORM ORNSTEIN, AMERICAN ENTERPRISE INSTITUTE
Mr. ORNSTEIN. Thanks, Mr. Chairman. Let me start with just a broader comment. I first became really concerned about this particular issue at the tail end of the last campaign. I spent several days in Arizona right before the election. There was a very hotly contested House seat there, one held by J.D. Hayworth, and I spent a couple of days basically just watching the ads on all of the Phoenix television stations as we approached the election. It was the Thursday and Friday before the election.
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There were hundreds of ads. The race dominated it. It was a very important one, of course, control of the House perhaps at stake. Hundreds of ads on that seat, almost all of them really tough, vicious, negative ads. I literally did not see one commercial on Phoenix television that was put on by either of the candidates. They were all issue ads, presumably, and all focussed on the candidates, and what I saw was a campaign where basically the candidates and in effect the parties had no control or really no significant play in the particular agenda, and what I saw from that, and now we have some systematic studies looking across the country, and what I see looking ahead is that if we do not address this issue in some fashion, we are truly headed for a brave new world of politics where candidates are virtually the only ones limited in what they can do in this process, where they have no control of campaigns, where there is no accountability in this process.
One of your witnesses earlier said consider the source. We cannot consider the source here because we are not talking about disclosure. Where perhaps the good news at this point is that we certainly do not need an independent counsel. We do not need these House and Senate Committees. The direction that we are moving in, any of these laws are irrelevant as long as the money that is being raised or spent does not use words that imply direct advocacy. The Vice President, the President, can do anything they want, raise money from wherever they want, use foreign money in whatever sources because that is completely outside our ken here.
I do not like that direction, and I think we need to address this in a serious fashion. Let me make a couple of broad points, some of which reiterate what Josh Rosenkranz has said. Is there a distinction between different kinds of speech here? The Court has made it clear there is a distinction. My guess is if you had asked some of the witnesses in the previous panel or asked some others out there who are advocates on this issue, they would prefer that there be no distinction at all meaning no rules whatsoever, and let me also add that those who advocate the approach which is now in the Doolittle bill, well, we can deregulate the process and just have disclosure, are suggesting now that in fact we are leaving a huge area, which now estimates suggest $150 million or more in television advertising where there would be no disclosure, so even that would not be effective, but certainly the Court has suggested there is a distinction.
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The question we have to ask if we accept that distinction is is the Court's bright-line distinction of express advocacy versus all other kinds of speech the only distinction that can be made, and given what has happened to the political climate and landscape since 1976, and what we saw happening out there in 1996, whether or not we ought to in some very small measure revisit that line to take into account the current realities of communication, and I believe we do. Those who do believe that we ought to revisit it have some different ideas about how it ought to be done.
Unlike Mr. Rosenkranz, I would prefer another bright line. I do not want to have fuzziness here where bureaucrats can decide what is on the right side of the line or what is on the wrong side of the line. The bright line that I would draw would indeed have a time limit attached to it. We know that there is a difference between speech that comes close to an election and speech that does not. We know that Congress accepts that distinction because they put limits on their own communications on constituents with regard to the frank.
If you did not believe that there was a difference between something occurring close to an election or not, then why not have a frank going right up to election day? So the notion that speech close to an election, the context of that speech, is different, I think is fairly clear at least to the Congress, and I would add that, make reference to a candidate close to an election—pick your time frame. Congress picked 90 days, some of the legislation picked 60 days—would be deemed as political speech.
I am more than happy to try and create differences in thresholds here so that we do not bring in inadvertently terrible consequences. We know already the Court has allowed exceptions with regard to political speech, including disclosure for small groups. Set a dollar threshold. Have it apply to electronic communications, but what we have suggested is slightly re-drawing that line to take into account a reality where we are no longer going to have accountability where there is objection to any disclosure of source where we have groups with names like Americans for Reform out there with money channeled through from all different kinds of sources where you have no limits on the money raised, no limits on the contributions, no limits on the sources, and no effective disclosure, and we are going to have a political system which is, I believe, completely out of control, and we will look back on 1996 as the good old days. Thank you.
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Mr. CANADY. Thank you, Mr. Ornstein. As you can hear, we have a series of votes taking place on the floor. The Subcommittee will stand in recess until 1:00 or as soon thereafter as the votes are concluded. We will not be back any sooner than 1:00.
[Recess.]
Mr. CANADY. The Subcommittee will be in order. We apologize for the delay. We will try to proceed now, and hopefully we will be able to proceed to conclusion without any further interruption. Mr. Simon.
STATEMENT OF DONALD J. SIMON, EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL, COMMON CAUSE
Mr. SIMON. Thank you, Mr. Chairman. I appreciate the opportunity to testify on behalf of Common Cause regarding the role of so-called issue advocacy in the 1996 campaign, and how advertisements run under the guise of issue ads were used as a means to evade the Federal campaign finance laws.
Common Cause strongly believes there is a need for Congress to enact legislation to address this problem, and what is emerging, we believe, as a major loophole in the system of Federal Campaign Finance regulation. This matter raises a question of fundamental importance to the viability of the Federal election law, whether the Congress will permit the creation of a loophole in the law through which unlimited, unregulated, and undisclosed money can flow into federal campaigns, thereby subverting the law's purpose of protecting the integrity of federal elections from corruption and the appearance of corruption, which are purposes and interests which the Supreme Court found to be compelling in the Buckley case.
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Now, the mechanism of this evasion is electioneering for candidates that takes place in the guise of so-called issue advocacy, and there is a basic distinction here which Josh Rosenkranz talked about, but I want to re-emphasize. The purpose of federal campaign finance law is to regulate money spent to advocate the election or defeat of candidates in federal campaigns. The law is not intended to regulate or limit money spent on the discussion of public issues.
So the question before Congress in this debate is not whether issue ads should be limited or regulated or banned. They should not be. The question instead is whether campaign ads should be allowed to escape regulation as campaign activity, regulation again which the Court has held serves compelling public purposes, simply because those campaign ads are cleverly, if sometimes cynically, crafted to appear to be something else.
Now, again, let me emphasize that this debate is not about whether to regulate issue advocacy. It is about how to draw a 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 subject to regulation. 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 we have regulating money in the political process and preserving the integrity of our elections.
As we have talked about this morning, the Supreme Court in Buckley developed the expressed advocacy test to try to draw the line between these two forms of speech, and under this test, ads which contain express advocacy are considered campaign ads and subject to regulation while ads that do not contain expressed advocacy are not.
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The problem is not with the express advocacy test itself, but in how that test has been interpreted by some, although not all, lower courts. Those courts have applied the test by asking only whether the speech in question contains the so-called magic words, phrases such as ''vote for,'' ''vote against,'' ''elect,'' ''defeat,'' and so forth. This application of the test is so narrow and so mechanical as to allow ads that are clearly electioneering ads and therefore properly within the scope of the campaign finance laws to appear as unregulated issue discussion outside the scope of the laws.
The problem, as I think the Ninth Circuit Court of Appeals recognized, is that the short list of magic words, in the words of the Ninth Circuit, that short list of magic words ''does not exhaust the capacity of the English language to expressly advocate the election or defeat of a candidate,'' and I do not think the Supreme Court in the Buckley case ever stated otherwise.
In fact, as we all know, it is extraordinarily easy to create ads without using magic words that nonetheless clearly and unequivocally and unambiguously and unmistakably will advocate a candidate's election or defeat and will be so understood by any reasonable listener or viewer or reader. A report was issued earlier this week by the Annenberg Public Policy Center, and that report contains one example after another of ads run by numerous groups and by both political parties in the 1996 election that any person would understand to be campaign ads, but because those ads avoided using any of the magic words, they were treated under the law as if they were something else altogether.
Let me just finish by saying that although the magic word test that is now applied by the lower courts, by itself marked a line between campaign ads and issue ads, I think it clearly marks the wrong line because it is a test that is simply under-inclusive. It allows many ads that in fact expressly advocate the election or defeat of a candidate to escape regulation as campaign advocacy.
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Congress, we believe, needs to address this problem by enacting legislation to broaden the definition of express advocacy to include all ads that are properly understood as campaign ads and therefore should be regulated as such, even if they do not contain magic words, and doing this will close this loophole in the law and thereby serve the very important purposes of our campaign finance regulations. Thank you.
[The prepared statement of Mr. Simon follows:]
PREPARED STATEMENT OF DONALD J. SIMON, EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL COMMON CAUSE
Mr. Chairman and Members of the Committee, I appreciate the opportunity to testify on behalf of Common Cause regarding the role of so-called ''issue advocacy'' in the 1996 campaign, and how advertisements run under the guise of ''issue ads'' were used as a means to evade the federal campaign finance laws. Common Cause strongly believes there is a need for Congress to enact legislation to address this problem and to close what is emerging as a major loophole in the system of federal campaign finance regulation.
This matter raises a question of fundamental importance to the continued viability of the Federal Election Campaign Act (FECA), as well as to the broader goal of regulating money in the political process: whether the Congress will permit the creation of a loophole in the FECA through which unlimited, unregulated and undisclosed money can flow into federal campaigns, thereby subverting the FECA's purpose of protecting the integrity of the electoral process from corruption and the appearance of corruption—interests which the Supreme Court found to serve compelling public purposes in Buckley v. Valeo, 424 U.S. 1 (1976).
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The mechanism of this subversion is electioneering for candidates that takes place in the form of so-called ''issue advocacy.'' The purpose of the FECA is to regulate money spent to advocate the election or defeat of candidates in federal campaigns. The FECA is not intended to regulate or limit money spent on the discussion of public issues.
The question before Congress in this debate is not whether issue ads should be limited, or regulated, or banned. They should not be. The question, instead, is whether campaign ads should be allowed to escape regulation as campaign activity—regulation that serves compelling public purposes—simply because those ads are cleverly, if cynically, crafted to masquerade as something else.
Thus, this debate is not about whether to regulate issue advocacy. It is about how to draw a 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.
The Supreme Court in Buckley developed the ''express advocacy'' test in order to draw the line between these two forms of speech. Simply put, under this test, ads which contain ''express advocacy'' are considered campaign or electioneering ads subject to regulation under the FECA; ads which do not contain ''express advocacy'' are not.
The problem is not in the ''express advocacy'' test itself, but in how that test has been interpreted by some, although not all, lower courts. The question is whether that test must be applied in a fashion that is so narrow, so wooden and so mechanical as to allow electioneering ads that are properly within the scope of the FECA to masquerade as unregulated ''issue discussion'' outside the purview of the statute, thereby rendering much of the FECA effectively meaningless.
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This wooden test for ''express advocacy'' asks only whether the speech in question contains so-called ''magic words.'' This test derives from—although it is not required by—a footnote in the Buckley opinion whereby the Court set forth illustrative examples of words or phrases—such as ''vote for,'' ''elect,'' ''support,'' ''cast your ballot for,'' ''Smith for Congress,'' ''vote against,'' ''defeat,'' and ''reject''—that mark an advertisement as express candidate advocacy within the scope of the FECA.
Buckley's list of illustrative words, however, does not exhaust the methods of ''express advocacy,'' and the Supreme Court did not otherwise assert. It is undisputed that persons wishing to ''expressly advocate'' the election or defeat of a candidate need not use any particular ''magic words'' to accomplish that objective. It is extraordinarily easy to create communications devoid of ''magic words'' that nonetheless clearly and unequivocally advocate a candidate's election or defeat, and will be so understood by any reasonable viewer, listener or reader.
Thus, the ''magic words'' test, by itself, clearly marks the wrong line between a campaign ad and an issue ad. The test is radically under-inclusive, and allows many ads which ''expressly advocate'' a candidate's election to escape regulation as campaign advocacy.
There are serious consequences of using a test that is so flawed. Under this standard, for instance, by the simple expedient of avoiding ''magic words,'' corporations are easily able to effectively gut the FECA's ban on corporate spending in federal campaigns—a core principle of our election laws since the Federal Corrupt Practices Act was enacted in 1907—and thereby create a flow of unlimited and undisclosed corporate money into federal elections. The same is true for labor unions, for which the spending of treasury funds in connection with federal elections has been banned since the 1940's. Political parties and individuals are also easily able to avoid other key FECA provisions by the same mechanism.
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These are not speculative or hypothetical fears—such evasion occurred in the 1996 elections, involving tens of millions of dollars spent outside the scope of the FECA, simply because the ads were carefully crafted to avoid the use of ''magic words.'' The Annenberg Public Policy Center, in a study released earlier this week, estimated that the two political parties and other groups spent $135 to $150 million on campaign ads in the guise of ''issue advocacy'' during the 1996 campaign. Bluntly speaking, this spending represented a means of massive cheating on the federal campaign finance laws.
But even more is at stake in this matter than the evasion of the Nation's most fundamental anti-corruption laws. The rise of so-called issue advocacy as a means to evade the campaign finance laws is changing the basic nature of our political campaigns. It is making our political discourse less subject to public accountability.
Indeed, candidates are losing the ability to control their own campaigns. As Paul Taylor notes in his introduction to the Annenberg report:
This [spending on issue advocacy] is unprecedented, and represents an important change in the culture of campaigns. Candidates now share the election megaphone with a cacophony of other voices. . . . To the naked eye, these issue advocacy ads are often indistinguishable from ads run by candidates. But in a number of key respects, they are different. Unlike candidates, issue advocacy groups face no contribution limits or disclosure requirements. Nor can they be held accountable by the voters on election day.
Some argue that any effort to redefine ''express advocacy'' is an attempt to restrict participation in political campaigns and to reduce the amount of campaign speech. This argument is a red herring. Closing the ''issue advocacy'' loophole is, rather, an effort to ensure that robust campaign debate—but all campaign debate—takes place on a level playing field, subject to a common set of rules that have been enacted by Congress and approved by the Court as preserving the integrity of the political process and safeguarding our democracy from corruption and the appearance of corruption.
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For these reasons, Congress should act to ensure that all campaign ads—including those masquerading as issue ads—are subject to the laws regulating campaign ads. The clearly insufficient ''magic words'' definition of ''express advocacy'' should be replaced by a statutory definition that more accurately captures within its scope all campaign ads that expressly advocate the election or defeat of federal candidates.
A. The Federal election laws protect compelling public interests that are undermined by the growing use of campaign ads in the guise of issue ads.
1. The ban on corporate and union spending. Since 1907, corporations have been banned from spending their treasury money in connection with any federal election. And since 1947, a similar ban has applied to labor organizations. The ban on corporate spending, codified at 2 U.S.C. §441b, has been upheld by the Supreme Court, which found that it serves the important purpose:
. . . to ensure that substantial aggregations of wealth amassed by the special advantages which go with the corporate form of organization should not be converted into political ''war chests'' which could be used to incur political debts from legislators who are aided by the contributions.
FEC v. National Right to Work Comm., 459 U.S. 197, 207 (1982).
The Court found this purpose to be compelling:
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The overriding concern behind the enactment of statutes such as the Federal Corrupt Practices Act was the problem of corruption of elected representatives through the creation of political debts. The importance of the governmental interest in preventing this occurrence has never been doubted.
Id.
The importance—and constitutionality—of the ban on corporate and union money in federal elections has been repeatedly upheld by the Court. Eg, FEC v. Massachusetts Citizens for Life (MCFL), 479 U.S. 238, 257, 259 (1986) (''Direct corporate spending on political activity raises the prospect that resources amassed in the economic marketplace may be used to provide an unfair advantage in the political marketplace. . . . The expenditure restrictions of section 441b are thus meant to ensure that competition among actors in the political arena is truly competition among ideas.''); Austin v. Michigan State Chamber of Commerce, 494 U.S. 652, 659 (1990) ('' 'the compelling governmental interest in preventing corruption support[s] the restriction on the influence of political war chests funneled through the corporate form.' '').
In MCFL, the Supreme Court upheld the ban on corporate and union spending in federal elections, but construed section 441b—which prohibits corporate and union spending ''in connection with'' any federal election—to extend only to ''express advocacy.''
The effect of MCFL is to make the ban on corporate and union spending coextensive with the definition of ''express advocacy.'' If corporations and unions can avoid ''express advocacy'' simply by not using ''magic words,'' they will be free—as they were during the 1996 campaign—to engage in unrestricted spending that in fact advocates the election or defeat of clearly identified candidates, notwithstanding the decades-long policy of prohibiting corporate and union spending in federal elections. Such spending will continue to be—as it was in 1996—unrestricted in source, unlimited in amount and undisclosed to the public, so long as it avoids ''magic words''.
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2. The limit on party coordinated expenditures. The political parties are limited in the amount of money they can spend in coordination with their congressional and presidential candidates. 2 U.S.C. §441a(d), and restricted in the source of those funds. 2 U.S.C. 441b(a). In Colorado Republican Federal Campaign Committee v. FEC, 116 S.Ct. 2309 (1996), the Supreme Court held that the parties have the right to make unlimited independent expenditures on behalf of their candidates, but the Court did not disturb the existing limits on spending by parties that is coordinated with their candidates. Such spending is still subject to the limit if it is ''in connection with'' a campaign.
In the 1996 campaign, the parties generally interpreted section 441a(d) as if its limitations extended only to spending which contained express advocacy, and only to express advocacy which contained ''magic words.''
Coordinated spending that did not contain ''magic words''—in the view of the parties—was outside the scope of section 441a(d) and therefore unregulated. Thus, by simply avoiding the use of ''magic words,'' the parties avoided the limits on coordinated spending. And similarly, they funded this spending with money from non-federal sources, or soft money. Thus, the reliance on the ''magic words'' test for express advocacy became a mechanism for the parties to evade key provisions of the FECA, to engage in spending in excess of the existing spending limits, and to use non-federal soft money in connection with federal campaigns.
3. Disclosure. Finally, the comprehensive disclosure of money spent in federal elections is a bedrock principle of the FECA. The statute contains a number of provisions designed to expose money in the election process to the light of day, and thereby prevent corruption or the appearance of corruption. Among these provisions is the requirement that any person or political committee file public reports whenever they make independent expenditures that expressly advocate the election or defeat of a candidate. 2 U.S.C. §434(c).
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In Buckley, the Supreme Court held that disclosure requirements such as section 434(c) ''directly serve substantial governmental interests.'' 424 U.S. at 68. First, disclosure ''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 voters in evaluating those who seek federal office.'' Id. at 66. Second, disclosure requirements ''deter actual corruption and avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity.'' Id. at 67. And third, disclosure requirements aid in the enforcement of the other anti-corruption purposes of the FECA, such as the limits on contributions to candidates. Id. at 68.
In Buckley, the Court held that the FECA's disclosure requirements should be limited to reach only ''express advocacy''—''spending that is unambiguously related to the campaign of a particular federal candidate.'' Id. at 80.
Thus, the definition of ''express advocacy'' becomes the critical test of whether the FECA's disclosure requirements are to have force. If the avoidance of ''magic words'' places campaign speech outside the scope of the FECA—no matter how clearly and ''unambiguously'' the speech advocates the election or defeat of a candidate—the disclosure requirements of the law will, along with its other provisions, be easily circumvented.
In short, the scope of several key provisions of the FECA—its ban on corporate and union spending, its limits on party spending and its disclosure provisions—have been interpreted to turn on the definition of ''express advocacy.'' If that term is defined too narrowly so as not to encompass all ads which are plainly campaign ads—a clear result of the ''magic words'' test—then the compelling purposes of the FECA will be easily frustrated by spending on campaign ads which will not be covered by the -provisions of the campaign finance laws.
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B. Unions, corporations and parties circumvented the election laws in 1996 by engaging in express candidate advocacy without using ''magic words.''
As the Annenberg Center report notes, up to $150 million was spent by parties and groups in the 1996 election on so-called issue ads ''that looked and sounded like campaign ads [but were] beyond the reach of campaign contribution limits or disclosure requirements.'' The introduction to the Annenberg report highlights one ad, which is credited for affecting the outcome of the 1996 Montana congressional campaign, sponsored by a private group based in Virginia called Citizens for Reform:
Who is Bill Yellowtail? He preaches family values, but he took a swing at his wife. And Yellowtail's explanation? He only 'slapped her.' But her nose was broken.
As the Annenberg report notes, ''It is difficult under any real world standard to consider that ad anything except electioneering. But it does not contain any of the court's magic words so it wasn't electioneering in the eyes of the law.''
This ad is representative of the tens of millions of dollars of campaign ads run by corporate and labor groups, and by both political parties, outside the scope of the campaign finance laws. The best known of these ad campaigns was mounted by the AFL–CIO which, according to the Annenberg report, spent $35 million in 1996 on an ''issue ad'' campaign. It ran ads in 44 congressional districts—all Republican. It spent an average of $250,000 to $300,000 on media in the districts of the 32 House-Republicans who were targeted. One freshman—J.D. Hayworth—was the target of more than $1.6 million in labor issue ads, although he won reelection. One ad placed against Representative Nathan Deal (R–GA) said, ''Next year, let's say: 'No deal.' Because nobody needs a congressman like Nathan Deal. . . .'' Yet that ad was treated by the AFL–CIO as ''issue discussion'' and not campaign advocacy.
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Corporations were also active. The Chamber of Commerce organized The Coalition, a combination of 32 business groups that formed to counter the AFL–CIO campaign. It spent $5 million on ''issue'' ads in 1995 and 1996, much of it in the same districts targeted by the labor spending.
The purpose of this spending was overtly to affect federal campaigns. A guide for corporate spending published in May 1996 by the Business-Industry Political Action Committee (BIPAC) illustrates how these ads worked. The guide made no effort to hide the fact that its purpose was to ''lay out the various election laws and how groups can legally influence elections.'' It listed five ''tools''—including so-called ''issue advocacy''—to be ''used to help reelect imperiled pro-business Senators and Representatives, defeat vulnerable anti-business incumbents, and elect free-enterprise advocates in campaigns without an incumbent.'' (emphasis added).
The Annenberg report lists numerous examples of ads run by both business and labor groups, by conservative and liberal groups, that any reasonable person would understand as election advocacy. For example, the Citizens for the Republic Education Fund paid for more than $300,000 worth of television ads run in late October, 1996, attacking Arkansas Democratic Senate candidate Winston Bryant. One ad stated:
Senate candidate Winston Bryant's budget as Attorney General increased 71%. Bryant has taken taxpayer funded junkets to the Virgin Islands, Alaska, and Arizona. And spent about $100,000 on new furniture. Unfortunately, as the state's top law enforcement official, he's never opposed the parole of any convicted criminal, even rapists and murderers. And almost 4,000 Arkansas prisoners have been sent back to prison for crimes committed while they were out on parole. Winston Bryant: government waste, political junkets, soft on crime.
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Because the ad contained no ''magic words'' in the form of ''vote against Winston Bryant,'' it was treated as issue advocacy, even though the ad—run in the immediate pre-election period—would be understood by any reasonable person as expressly advocating Bryant's defeat.
The League of Conservation Voters, according to the Annenberg report, aired almost 10,000 television and radio commercials in the districts of Members it deemed as the ''Dirty Dozen.'' One LCV ad, run in another Member's district, said:
It's our land; our water. America's environment must be protected. But in just 18 months, Congressman Ganske has voted 12 out of 12 times to weaken environmental protections. Congressman Ganske even voted to let corporations continue releasing cancer-causing pollutants into our air. Congressman Ganske voted for the big corporations who lobbied these bills and gave him thousands of dollars in contributions. Call Congressman Ganske. Tell him to protect America's environment. For our families. For our future.
To similar effect, the Sierra Club spent more than $1 million on media ads during the 1996 campaign, according to the Annenberg study. One ad said:
Our beautiful beaches. Our children's inheritance to protect and preserve. But Congressman Andrea Seastrand has voted to make it easier to dump pollutants and sewage into our water. Fact is, Seastrand, who took over $117,000 in campaign contributions from some notorious polluters . . . voted 11 out of 11 times against the environment, against our families' health and future. Fact is, it's time to dump Andrea Seastrand. Before she dumps anything else on us.
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Notwithstanding the call to dump'' Seastrand, the ad was treated as a non-campaign ''issue ad'' because it did not contain ''magic words'' of express advocacy. According to the Annenberg study, the Sierra Club itself, however, stated in a report that ''Americans chose Sierra Club-backed candidates in two of every three races in which the Club invested heavily in time, money, or both. . . .'' The Sierra Club, according to the Annenberg report, noted that its activities ''were expressly political, unapologetically aimed at changing the makeup of Congress. . . .''
About half of the $150 million spent on so-called ''issue advocacy'' in 1996 was spent by the two political parties. According to the Annenberg report, the Democratic National Committee spent $44 million on ''issue ads'' in 1995 and 1996, much of which was paid for in soft money and not counted against the party's spending limits. In a complaint filed with Attorney General Janet Reno on October 9, 1996, Common Cause extensively documented how the Clinton re-election campaign ran its candidate campaign ads through the DNC as a conduit, using soft money raised by the President or his agents to run television ads designed and targeted by the campaign committee's media adviser and political strategist. One such ad stated:
Protect families. For millions of working families, President Clinton cut taxes. The Dole/Gingrich budget tried to raise taxes on eight million. The Dole/Gingrich budget would've slashed Medicare $270 billion, cut college scholarships. The President defended our values, protected Medicare. And now a tax cut of $1,500 a year for the first two years of college, most community colleges free. Help adults go back to school. The President's plan protects our values.
The DNC took the position that because ads such as this did not contain ''magic words,'' they were issue discussions, not campaign ads, even though they were produced and controlled by agents of the President reelection committee. As so-called issue ads, the party did not count the money against either the candidate's or the party's spending limit. And federally illegal soft money was used to finance this ad campaign.
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The RNC did much the same and, according to the Annenberg report, spent $34 million on issue advertising in 1996. Many of these ads—$14 million worth—were in fact Dole campaign ads, run through the RNC as a conduit. According to the Annenberg study:
In 1996, the cash strapped Dole presidential campaign did not have the money to pay for commercials between March 18 and the Republican Convention in August, when Dole was able to receive federal funds for the general election. The RNC provided money for ads in support of the Dole candidacy during that period.
For example, in August, 1996, the RNC spent $3.5 million on a television commercial attacking President Clinton's stance on drugs. In July, 1996, it ran a commercial that attacked Clinton's failed promise of a tax cut for the middle class. At the end of May, 1996, the RNC produced ''Stripes'' which ridiculed President Clinton's use of the Soldiers' and Sailors' Defense Act of 1940 in the Paula Jones suit. . . . Another RNC ad in May attacked Clinton on his record on the gasoline tax. In April, the RNC ads focused on Clinton's record on welfare and taxes.
Perhaps the most infamous example of these so-called issue ads was ''The Story,'' a bio ad featuring Senator Dole that used some of the same video footage as the almost identical bio ad produced and paid for directly by the Dole campaign itself before it ran out of funds. This party ''issue'' ad said:
(Dole): ''We have a moral obligation to give our children an America with the opportunity and values of the nation we grew up in.''
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(Announcer): Bob Dole grew up in Russell, Kansas. From his parents he learned the value of hard work, honesty and responsibility. So when his country called, he answered. He was seriously wounded in combat. Paralyzed, he underwent nine operations.
(Dole): ''I went around looking for a miracle that would make me whole again.''
(Announcer): The doctors said he'd never walk again. But after 39 months, he proved them wrong.
(Elizabeth Hanford Dole): ''He persevered, he never gave up. He fought his way back from total paralysis.''
(Announcer): Like many Americans, his life experience and values serve as a strong moral compass. The principle of work to replace welfare. The principle of accountability to strengthen our criminal justice system. The principle of discipline to end wasteful Washington spending.
(Dole): ''It all comes down to values; what you believe in, what you sacrifice for, and what you stand for.''
According to a published report, ''[T]he ad concluded with the innocuous entreaty, 'call your elected officials.' What one was supposed to tell them was never made clear.''
The attempt to cast this Republican Party ad as an ''issues'' ad rather than as a Dole candidate ad belies reality. The ad was the same kind of bio ad that any candidate would run to promote his candidacy.
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In sum, the experience of the 1996 campaign shows that ads run under the guise of so-called ''issue advocacy'' were not ads of issue discussion at all, but ads to influence federal elections and which—by the interpretation of any reasonable person—would be seen and understood as advocating the election or defeat of federal candidates. As such, these ads were—and should be regulated as—campaign ads.
C. Express advocacy can and should be defined by Congress as more than simply ''magic words.''
Congress can enact a statutory definition of ''express advocacy'' to replace the existing ''magic words'' test with a more realistic standard that would better capture the full universe of campaign ads within the scope of federal campaign finance regulation.
Although other lower courts disagree, the Ninth Circuit has recognized that speech can expressly advocate the election or defeat of a candidate without using one of the limited list of ''magic words'' or their equivalent. In FEC v. Furgatch, 807 F.2d 857, 863–64 (9th Cir.) cert. den. 484 U.S. 850 (1987), the court said:
We begin with the proposition that ''express advocacy'' is not strictly limited to communications using certain key phrases. The short list of words included in the Supreme Court's opinion in Buckley does not exhaust the capacity of the English language to expressly advocate the election or defeat of a candidate. A test requiring the magic words ''elect,'' ''support,'' etc., or their nearly perfect synonyms for a finding of express advocacy would preserve the First Amendment right of unfettered expression only at the expense of eviscerating the Federal Election Campaign Act. ''Independent'' campaign spenders working on behalf of candidates could remain just beyond the reach of the Act by avoiding certain key words while conveying a message that is unmistakably directed to the election or defeat of a named candidate.
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The Ninth Circuit noted that a proper understanding of the speaker's message ''can best be obtained by considering speech as a whole.'' 807 F.2d at 863. The court held that the context of speech—for instance, its proximity to an election—is also important:
A consideration of the context in which speech is uttered may clarify ideas that are not perfectly articulated, or supply necessary premises that are unexpressed but widely understood by readers or viewers.
Id.
The court then formulated a test for ''express advocacy'' that extended its reach beyond the simple use of ''magic words'' while at the same time remaining consistent with the First Amendment protection of issue discussion.
Common Cause believes that Congress, relying on the sound reasoning of the Ninth Circuit, can and should enact legislation to expand the definition of ''express advocacy'' to encompass not just speech with ''magic words'' but other forms of plainly campaign related advocacy, as amply illustrated by the examples in the Annenberg report. The test proposed by the Ninth Circuit is one possible approach to draw a more accurate line between issue discussion and electioneering discussion, but other tests to achieve the same goal have been suggested as well.
To enact a statutory definition of ''express advocacy'' beyond simple ''magic words'' is, in our judgment, consistent with the position of the Supreme Court. The two relevant Supreme Court precedents—Buckley and MCFL—do not stand in the way
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of such legislation.
In a footnote in Buckley, the Court set forth a list of phrases illustratively as examples of speech that would constitute express advocacy, but did not limit express advocacy to that list of examples. This point is made clear in MCFL, where the Court reviewed a corporate publication that said ''Vote Pro-Life'' and contained a listing of candidates identified as ''either supporting or opposing what MCFL regarded as the correct position on these issues.'' 479 U.S. at 243. The Court found that MCFL's newsletter did contain express advocacy:
[MCFL's publication] cannot be regarded as mere discussion of public issues that by their nature raise the names of certain politicians. Rather, it provides in effect an explicit directive: vote for these (named) candidates. The fact that this message is marginally less direct than ''Vote for Smith'' does not change its essential nature. The Edition goes beyond issue discussion to express electoral advocacy.
479 U.S. at 243 (emphasis added)
Thus, the Court found that the substance of the ad at issue was not ''mere discussion of public issues.'' It was ''in effect'' an explicit directive to ''vote for'' certain candidates. In the Court's view, it was the ''essential nature'' of the speech that was dispositive, not simply whether it contained any of the particular words listed in the Buckley footnote.
This understanding of MCFL is consistent with Buckley. The description of express advocacy in Buckley requires a communication to contain ''express words of advocacy'' but does not purport to provide an exclusive list of communications that meet that standard. Rather, Buckley lists a sample of phrases ''such as'' the words ''vote for,'' ''elect'' and so forth. The Court plainly intended this list to be illustrative, not exhaustive.
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This leaves room for Congress to act to broaden the definition of express advocacy to include communications that—because of their proximity to an election, or because they will unmistakably be understood by a viewer or listener to advocate the election or defeat of a candidate, or because the ads were intended to influence the election—should be considered to be campaign ads and regulated as such, even if they do not contain ''magic words.''
Common Cause urges Congress to enact such legislation in order to close the serious loophole that has been opened in the FECA by the use of campaign ads disguised as issue discussion. The existing test in the law fails to reflect the reality of why such ads are run or what effect they have. The Supreme Court has repeatedly recognized the compelling public purposes served by the federal campaign finance laws in deterring corruption and the appearance of corruption. Those purposes will be furthered by closing the loophole that now allows campaign ads masquerading as issue ads to escape regulation and thereby frustrate the important goals of the campaign finance laws.
Mr. CANADY. Thank you, Mr. Simon. Professor Gora.
STATEMENT OF PROFESSOR JOEL M. GORA, DEAN, BROOKLYN LAW SCHOOL, AND COUNSEL, AMERICAN CIVIL LIBERTIES UNION
Mr. GORA. Thank you, Chairman Canady, members of the Committee. It is my pleasure and privilege to appear here today on behalf of the American Civil Liberties Union, which I have been associated with for a number of years, working on the issue of campaign finance and the First Amendment. Indeed, I was privileged to be one of the attorneys in Buckley v. Valeo for the challengers, who contended that the Federal Election Campaign Act systematically violated the First Amendment. From the very beginning, the ACLU has maintained that limit-based approaches to campaign finance problems are unconstitutional, in violation of the First Amendment, are unwise because they have the effect of stilling and frustrating new voices and insurgent points of view, and are unworkable because as we have seen, many groups and individuals will find ways to bring their resources to bear on the political process.
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That is why we have had the rise of PACs, the increasing use of soft money, and the growing activity of issue groups. So limits really are not the way to approach this problem, and certainly not limits on issue advocacy, and that is how we at the ACLU got into this situation. In 1972, under the brand new Federal Election Campaign Act of 1971, the government filed a lawsuit against a small group of dissenters who had the temerity to run an ad in the New York Times in May, 1972, urging the impeachment of Richard Nixon for the bombing of Cambodia and other alleged war crimes, and mentioning an Honor Roll of eight members of Congress, including the ranking member, Representative Conyers and others, who had supported that impeachment resolution.
This looked to us like classic issue speech. It looked to President Nixon's Justice Department like a campaign message, an electioneering message. It was an election season. President Nixon was a candidate for re-election. The Honor Roll members of Congress were candidates for re-election, and the government sued on the theory that this was electioneering, activity that might have an influence on the outcome of the 1972 election.
That was our wake-up call about the ferocious First Amendment problems that campaign finance restrictions and limitations pose. And the courts agreed with us. The court said it would be abhorrent, it would be outrageous to subject such ads that discuss critical public issues to the regime of the FECA simply because they mention or criticize or praise candidates for office.
The ACLU had to go to court to assert its right to run a similar ad. And the court said now we have had a chance to let the dust settle a little bit. We have looked at the first efforts to bring enforcement against issue groups. We see you cannot do that. The FECA cannot reach groups that are engaged in issue discussion whether or not they discuss candidates and office holders in that context. Otherwise the consequences would be abhorrent.
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Despite these rulings, in 1974 when Congress passed the laws that were challenged in the Buckley case, that Congress purposely put in a provision to regulate any group that communicated any information to the public about any candidate for office including, of course, members of Congress up for re-election. And the legislative history showed that the provision was designed to get issue groups, box score groups who engaged in issue criticism and commentary about elected officials.
That provision of the law in the Buckley case was unanimously thrown out by the en banc court of appeals and the government did not even appeal that decision to the Supreme Court, because it was so clear that the effort to regulate issue advocacy was fundamentally violative of the First Amendment.
I have gone back and I have looked at the impeachment ad, and I have looked at the statute that we got declared invalid in the en banc court in the Buckley case. The kinds of speech that those provisions or those actions would have regulated would come within most of the definitions that are proposed before you today for expanding the reach of the express advocacy definition, because a reasonable person might think that this ad attacking President Nixon and praising members of Congress who opposed him was advocating the election or defeat during an election season, or within 90 days of an election. That is why we had the sense at that point that there was a fatal clash between trying to regulate issue speech and trying to carry out the mandates of the First Amendment.
The Supreme Court in the Buckley case understood that, understood it well, and said the relationship between issues and candidates is such that you can not talk about issues without talking about officials, most of whom, many of whom are candidates for re-election. So if discussions of candidates in the context of issues can bring you afoul of the Federal Election Campaign Act, then all issue discussion in the country is threatened with being silenced.
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The Court fashioned the express advocacy doctrine that we have been discussing today as a bright line, objective, hard-edged test to inform speakers and government where the line is, and that test has become an essential part of the First Amendment's fabric. We would urge you to resist any proposed legislation that would lower that barrier of protection for issue speech.
In closing, let me make just one final point. Earlier today, many concerns were raised about the difficulty of being a candidate for re-election, when issues are raised at the last minute, and ads are run against you and the like, and I can understand the concern that those problem would raise. But I would also point out that the First Amendment expresses particular concern in this regard as well, and that is why it speaks of ''Congress shall make no law abridging the freedom of speech.'' Thank you very much, Mr. Chairman.
[The prepared statement of Mr. Gora follows:]
PREPARED STATEMENT OF JOEL M. GORA, DEAN, BROOKLYN LAW SCHOOL, AND COUNSEL, AMERICAN CIVIL LIBERTIES UNION
My name is Joel M. Gora. I am Professor of Law at Brooklyn Law School where I teach Constitutional Law. I am also a General Counsel of the New York Civil Liberties Union and a former Associate Legal Director of the American Civil Liberties Union. In that capacity, I have been actively involved since 1972 in studying and litigating the constitutionality of campaign finance measures. I had the honor of being one of the ACLU attorneys who appeared for the plaintiffs before the Supreme Court in the landmark case of Buckley v. Valeo, 424 U.S. 1 (1976), arguing that the Federal Election Campaign Act was systematically violative of the First Amendment.
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I appreciate the opportunity to testify before you today on behalf of the American Civil Liberties Union. I would request permission to revise and extend my remarks before the record of these hearings is closed.
The ACLU is a nation-wide, non-partisan organization with nearly 300,000 members throughout the United States. For more than 75 years, the ACLU has been dedicated to upholding and protecting the First Amendment rights of all persons, irrespective of their partisan political interests or affiliations.
In defense of the fundamental First Amendment right of individuals and associations to engage in political expression, the ACLU has been an active participant in litigation challenging government regulations of campaign speech. Our New York affiliate was a party in the Buckley litigation, and the ACLU has provided counsel or participated amicus curiae in a number of campaign finance cases in the Supreme Court since Buckley, most recently filing a brief in Federal Election Commission v. Akins, No. 96–1690, which defends the rights of non-partisan, issue advocacy organizations to be free from unwarranted regulation under the Federal Election Campaign Act. And we have represented various groups and individuals, of all ideological persuasions, whose political advocacy has been prohibited, restricted or inhibited by campaign finance laws.
From the very first cases brought under the Federal Election Campaign Act, the ACLU has been consistently resisted the persistent attempts to use the FECA to regulate and restrain issue advocacy in a manner violative of time-honored First Amendment principles. See United States v. National Committee for Impeachment, 469 F.2d 1135 (2d Cir. 1972); American Civil Liberties Union v. Jennings, 366 F. Supp. 1041 (D.D.C. 1973)(three-judge court), vacated as moot sub nom. Staats v. American Civil Liberties Union, 422 U.S. 1030 (1975); Buckley v. Valeo, 519 F.2d 821 (D.C. Cir. 1975)(enbanc). Those cases help shape the critical principles such as the ''express advocacy'' doctrine designed to limit the impermissible reaches of the FECA. Indeed, if there is any principle which has come out of two decades of campaign finance jurisprudence with crystal clarity it is that non-partisan, issue advocacy and the organizations that engage in it cannot be subject to campaign finance controls. Yet, many of the bills before the Congress you would fundamentally violate that principle.
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1. THE FAILURE OF CAMPAIGN FINANCE CONTROLS
From the very beginning, the ACLU has consistently maintained that the FECA's limits-based approaches to campaign finance problems are unconstitutional, unwise and unworkable.
Limits are unconstitutional because they cut to the heart of the First Amendment's protection of political freedom. The very essence of the First Amendment is the right of the people to speak, to discuss, to publish, to organize, to join together with others on issues of political and public concern. Yet the FECA provisions at issue in the Buckley case imposed sweeping and Draconian restraints on the ability of citizens and groups, candidates and committees, parties and partisans to use their resources, to make political contributions and expenditures to support and embody their freedom of speech and association.
Limits are unwise because they make it harder for challengers and insurgents and new voices to raise funds to participate in politics and challenge incumbents, while enabling more established individuals and groups to find numerous ways to circumvent the limits. Limits on giving and spending make it harder for those subject to the restraints to raise funds and easier for those outside the restraints to bring their resources to bear on politics. Limiting individual contributions to $1,000 per candidate while allowing PACs to contribute $5000 makes it harder to raise money from individuals and makes candidates more dependent on PACs and other organized sources of support. In Buckley, we contended that the FECA was an unconstitutional law, enacted by Congress, approved by the President, enforced by an agency, the Federal Election Commission, beholden to both, and designed to restrain the speech and association of those who would criticize or challenge or oppose the elected establishment. That's why we called the Act an ''Incumbents Protection Act.''
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Limits are unworkable because groups and individuals will find other ways to bring their resources to bear on the political process. PACs, soft money, issue advocacy are all the direct result of campaign finance controls and limitations. As is well known, the Supreme Court struck down limitations on expenditures, but upheld limits on contributions. As a result, with overall spending limits voided as violative of the core of the First Amendments, with limits on how much wealthy candidates could spend on their own campaigns voided for the same reason, with independent campaign committees, issues groups and the press free to use their resources to comment on candidates and causes without limit, yet with less well-heeled candidates sharply restricted in their ability to raise money from family, friends and other contributors, the stage was set for two decades where the dominant factors would be the advantages of incumbency, the rise of PACs and the increasing use of ''soft money,'' and the growing activity of issue advocacy groups.
What this shows is what we predicted twenty years ago; the approach of limits on contributions and expenditures simply won't work. Limit the funding of the candidates equally, and the advantage of incumbency or celebrity will disturb the equilibrium, as well the presence of powerful outside voices, independent political groups, labor unions, issue groups, and the news media. Limit wealthy contributors from giving money to candidates, and they will still be able to buy newspapers, fund issue groups and give large amounts of ''soft money'' to get their message out in ways that the average person can never hope to equal. Attempt to limit all those voices and methods of influencing the electorate, on the claim that they are ''buying influence'' or ''drowning out the voice of the people'' or preventing ''a level playing field,'' and you have a First Amendment meltdown. Far better to deal with such disparities by providing floors to support political activity, not ceilings to restrict it.
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For more than twenty years, the ACLU has suggested the way out of the morass of disparities and dilemmas created by the restrictions of the FECA and the Buckley Court's only partial invalidation of them. Our position rests on the three basic principles: (1) No limits on political contributions or expenditures, (2) effective disclosure of the sources of large campaign contributions and (3) public financing to enhance political opportunity without limiting political speech. The way to eliminate disparities and expand political opportunity without limiting political speech is to take the path that the First Amendment chartered for us a long time ago: the First Amendment answer to bad or corrupt or ''excessive'' speech is more speech—publicly and privately funded—rather than ''silence coerced by law.''
But instead, the predominant legislative proposals before the Congress are based once again on the failed approach of limits, limits and more limits—on candidates, on political parties, on independent political groups—and, of course, on issue advocacy.
For me, it seems like deja vu all over again.
This is where I came in.
2. ISSUE ADVOCACY AND THE FIRST AMENDMENT
In 1972, I was a young staff counsel with the ACLU, when a couple of old-time dissenters came into our offices and told an incredible story. In late May of that year, they had sponsored a two-page advertisement in The New York Times advocating the impeachment of President Richard Nixon for bombing Cambodia and praising the handful of Members of Congress who had voted against the bombing. Because they ran that ad, the Justice Department hauled the little group into court, demanded to know how the group was organized and who had paid for the ad, and threatened these people with fines and injunctions for what they did. All for sponsoring an advertisement publicly criticizing the President of the United States on a crucial issue of the day and praising Members of Congress for their stand.
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That was a classic piece of issue advocacy, fundamentally protected by the First Amendment. It is exactly the kind of pure issue-oriented political speech that would be subject to restrictive and repressive regulation under many of the proposals now pending in Congress. How, in the face of the First Amendment, could the government have brought that action then, which was so reminiscent of the Alien and Sedition Acts in terms of stifling citizen criticism of government? How can similar proposals be put forward now? The answer: campaign finance ''reform.''
In 1972, the government was using the brand new Federal Election Campaign Act of 1971, claiming that the two page advertisement was sponsored ''for the purpose of influencing the outcome'' of the 1972 Presidential Election and of Congressional elections also, that this rendered this ad hoc little group a ''political committee,'' that they had to file reports and disclose their contributors and that they could be fined and enjoined from further speech unless they complied with the law. That was the ACLU's wake up call about the ferocious First Amendment problems posed by campaign finance controls.
We defended the impeachment ad group in 1972 and secured a number of court rulings that campaign finance laws could not be used against non-partisan, issue-oriented groups.
Now it is 1997, 25 years later, and efforts persist to subject issue-oriented groups to campaign finance controls. Witness the recent prior restraints imposed in Wisconsin against issue organizations that will be discussed at today's hearing. (See Jonathon Rauch, ''Speech Impediment.'' The New Republic, September 1, 1997, pp. 10–11.) Such efforts fly in the face of a central theme of the Supreme Court's campaign finance jurisprudence the imperative of preventing government from subjecting issue advocacy and issue advocates to campaign finance controls.
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In Buckley v. Valeo, the Supreme Court recognized that the statutory regime established by the Federal Election Campaign Act (FECA) ''operate[s] in an area of the most fundamental First Amendment activities.'' And the Court expressed particular concern that efforts to regulate campaign speech would present a serious risk of curtailing the capacity of citizens, as individuals and in association with others, to express freely their views on important matters of public policy and on the behavior of public officials in the conduct of governmental affairs.
''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.' Roth v. United States, 354 U.S. 476, 484 (1957). . . . '[T]here is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs, . . . of course includ[ing] discussions of candidates. . . .' Mills v. Alabama, 384 U.S. 214, 218 (1966). This no more than reflects our 'profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.' New York Times v. Sullivan, 376 U.S. 254, 270 (1964)'' Buckley v. Valeo, 424 U.S. 1, 14–15 (1976).''
Accordingly, the Court's opinion in Buckley repeatedly insisted upon narrow tailoring to avoid ''unnecessary abridgment of associational freedoms.'' Buckley, 424 U.S. at 25. The Buckley Court narrowed the reach of the FECA in important respects.
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For example, the Court considered statutory language that sought to regulate expenditures ''relative to'' a candidate and found the broad sweep of the provision objectionable. The Court recognized that issue-oriented expression by advocacy organizations is both commonplace and vital to our constitutional democracy and that the term ''relative to,'' as used in the statute, failed to provide a clear demarcation between campaign speech that might be subject to regulation and issue-oriented advocacy which, under First Amendment, would be required to remain wholly beyond the reach of the statute.
It is not that there is an inherent distinction between issue speech and electoral advocacy. Quite the contrary, as the Court recognized:
''For 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 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.'' 424 U.S. at 43.
If any mention of a candidate in the context of discussion of an issue rendered the speaker or the speech subject to campaign finance controls, the consequences for ''free discussion'' would be intolerable and speakers would be compelled ''to hedge and trim.'' Buckley 474 U.S. at 23, quoting from Thomas v. Collins, 323 U.S. 516, 535 (1945).
3. THE EXPRESS ADVOCACY DOCTRINE AND THE FIRST AMENDMENT
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Consequently, the Court concluded that the overarching constitutional problems posed by the overreaching quality of the statutory language could be avoided only if the provision regulating campaign expenditures were limited to ''communications that in express terms advocate the election or defeat of a clearly identified candidate. . . .'' 424 U.S. at 45. This ''express advocacy'' doctrine, which Buckley adopted ''to distinguish discussion of issues and candidates from more pointed exhortations to vote for particular persons. . .'' FEC v. Massachusetts Citizens for Life, 479 U.S. 238—(1986) has played a critical role in providing a bright line protection for issue advocacy.
Accordingly, while candidate-focused contributions, expenditures and ''express advocacy'' can be subject to regulation, all speech which does not ''in express terms advocate the election or defeat of a clearly identified candidate'' is totally free from permissible regulation: ''So long as persons and groups eschew expenditures that in express terms advocate the election or defeat of a clearly identified, they are free to spend as much as they want to promote the candidate and his views, 424 U.S. at 45 (emphasis supplied). And, they are likewise free from reporting and disclosure requirements as well. See 424 U.S. at 79–80.
The Court was also concerned that the definition of a ''political committee'' in terms of groups that used funds ''for the purpose of influencing'' any federal election suffered from the fatal ''potential for encompassing both issue discussion and advocacy of political result.'' Buckley, 424 U.S. at 79. Accordingly, thee Court concluded that to avoid constitutional difficulties the definition of ''political committee'' would need to be narrowed and that ''[t]o fulfill the purposes of the Act [the disclosure and other obligations of political committees] need only [apply to] organizations that are under the control of a candidate or the major purpose of which is the nomination or election of a candidate.'' Buckley, 424 U.S. at 79.
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The common requirement—running through the Buckley decision and the cases since then—is that the campaign finance regime should not encroach unnecessarily upon the speech and associational rights of issue-oriented advocacy organizations.
The Court has fashioned the express advocacy doctrine as the primary mechanism for safeguarding issue-oriented speech from campaign finance controls. The Court has thus drawn the critical distinction between (1) contributions and expenditures made by federal candidates, or their campaigns, or those who expressly advocate their election or defeat and, (2) all other issue discussion and advocacy, even though it might influence the outcome of an election. This constitutional divide is compelled by the First Amendment and is built upon the concept that only ''express advocacy''—i.e., an explicit call for the election or defeat of a particular candidate—can be subject to regulation.
The express advocacy doctrine thus provides powerful protection for issue-oriented speech, marking the boundaries of permissible restraint and freeing issue advocacy from any permissible regulation. Its categorical approach is comparable to other landmark doctrines like the ''actual malice'' concept of New York Times Co. v. Sullivan, 376 U.S.—(1964) or the ''incitement test'' of Brandenburg v. Ohio, 395 U.S. 444 (1969). Properly applied, it is a vital safeguard for issue organizations.
4. THE PATTERN OF ASSAULTS ON ISSUE ADVOCACY
The problem has been that enforcement actions under FECA have too often disregarded the bright line protections that the doctrine affords. And now legislative proposals would do the same.
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As I indicated earlier, the very first enforcement suit brought under the new Federal Election Campaign Act involved a handful of dissenters who had published a two-page advertisement in The New York Times in May 1972 urging the impeachment of President Richard Nixon and praising the few members of Congress who supported that view. See United States v. National Committee for Impeachment, 469 F.2d 1135 (2d Cir. 1972). The Second Circuit powerfully held that issue advocacy could not be regulated under the Act and issue organizations could not be treated as ''political committees.'' Drawing the now settled distinction between issue speech and partisan advocacy, the Second Circuit ruled that it would be an ''abhorrent'' and ''intolerable'' consequence to permit the FECA to allow the government to ''regulat[e] the expression of opinion on fundamental issues of the day.'' Id. at 1142.
The Impeachment suit followed by American Civil Liberties Union v. Jennings, 366 F. Supp. 1–41 (D.D.C. 1973) (three judge court), vacated as moot, 422 U.S. 1030 (1975). That case arose when the ACLU sought to sponsor a similar advertisement, shortly before the 1972 elections, criticizing the Nixon Administration's anti-busing policies and praising the member of Congress who had resisted the President on that issue. The court ruled that the portion of the Act which treated the ACLU advertisement as ''on behalf of'' the campaigns of members of Congress and ''in derogation of'' candidate Nixon. ''establishe[d] impermissible prior restraints, discourage[d] free and open discussion of matters of public concern and as such must be declared an unconstitutional means of effectuating legislative goals.'' Jennings, 366 F. Supp. at 1051.
With respect to the other portions of the FECA, which would have treated the ACLU as a ''political committee,'' the Jennings court followed the lead of the National Committee for Impeachment case and ruled that issue-oriented groups whose major purpose is not the election of candidates, could not be covered by the Act:
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We are satisfied that by so constricting the reaches of Title III, the fears of constitutional infringements expressed by plaintiffs will be eliminated. They and other groups concerned with the open discourse of views on prominent national issues may, under both this ruling and that of the Second Circuit, comfortably continue to exercise these rights and feel secure that by so doing so their associational rights will not be encroached upon. Id. at 1057.
These assurances proved short-lived. In 1974, in enacting the major campaign finance controls challenged in Buckley, the Congress included a special provision precisely designed to regulate issue-oriented groups in ways that had been ruled impermissible.(see footnote 23) That provision was challenged as part of the Buckley litigation, and the District of Columbia Circuit, which upheld every other provision of the new law, unanimously struck that one down as an unconstitutional regulation of non-partisan issue discussions, even of campaign issues and candidate voting records, which are ''vital and indispensable to a free society and an informed electorate.'' Buckley v. Valeo, 519 F.2d. 821, 873, 875 (D.C. Cir. 1975). That constitutionally failed and flawed provision is virtually identical to ones currently being proposed in the Congress.
In the years since Buckley the express advocacy doctrine has been an indispensable bulwark against overzealous efforts to regulate core political speech. From Federal Election Commission v. Central Long Island Tax Reform Immediately Committee, 616 F.2d 45 (2d Cir. 1980)(en banc) (finding the Commission's enforcement suit against a tax protest group to be ''totally, meritless'') to Clifton v. Federal Election Commission, 114 F.3d 1309 (1st Cir. 1997) (invalidating FEC regulations on limiting voter guides) the government has suffered ''a string of losses in cases between the FEC and issue advocacy groups over the meaning of the phrase 'express advocacy' and the permissible scope of the FEC's regulatory authority over . . . political speech.'' Federal Election Commission v. Christian Action Network. Inc., 110 F.3d 1049,—(4th Cir. 1997) (authorizing an awarding of fees and costs against the Commission for bringing enforcement proceedings against an issue group in clear violation of the Court's ''express advocacy'' doctrine.(see footnote 24)
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These attempted assaults on issue advocacy organizations, though they have been unsuccessful, can nonetheless have a chilling effect on such groups and their commentary and criticism about elected officials. As Justice Thurgood Marshall pointed out ''the value of a sword of Damocles is not that it drops, but that it hangs.'' Arnett v. Kennedy, 416 U.S. 134, 231 (1974)(dissenting opinions).
5. THE LEGISLATIVE THREATS TO ISSUE ADVOCACY
After two decades of assault on the express advocacy doctrine by the executive branch, now there are renewed proposals in Congress which would breach the wall of protection between partisan advocacy and issue advocacy. The provisions of the bills which assault independent political activity and invade the absolutely protected sphere of issue speech are precisely condemned by Buckley and its progeny and are all but per se invalid. The expanded enforcement powers which would be given to the Federal Election Commission would make a bad situation even worse.
These efforts would all undermine the purpose of the profound distinction embodied in the ''express advocacy'' doctrine, which is to keep campaign finance regulations from overwhelming all political and public speech.
The effect of the distinction has been manifold. It is the express advocacy concept that defines the notion of ''soft money'' which is political funding that is used for party-building, get-out-the-vote activities and generic advertising (''Vote Democratic''), all activities which do not ''expressly advocate'' the election or defeat of specific federal candidates. Because it is not used for such express advocacy, it can be raised from sources that would be restricted in making contributions or expenditures.
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It is the express advocacy concept that separates an illegal corporate expenditure advocating the election or defeat of a specific candidate from an allowed issue advertisement discussing public and political questions. Compare Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990) with First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978). It is the express advocacy concept that defines and cabins the concept of independent expenditures and determines the permissibility of coordinated expenditures.
It is the express advocacy concept that protects the myriad of non-partisan, issue-oriented groups like the ACLU in their right to comment on and criticize the performance of elected officials without becoming ensnared in the federal campaign finance laws. See Buckley v. Valeo, 519 F.2d 817, 832 (D.C. Cir. 1975).
And it is that critical constitutional distinction which many of these proposed bills seek to blur beyond recognition.
A. Soft Money
As indicated, soft money is funding that does not support ''express advocacy'' of the election or defeat of federal candidates, even though it may exert an influence on the outcome of federal elections in the broadest sense of that term. It sustains primary political activity such as get-out-the-vote drives and issue advertising.
Indeed, the unrestricted use of soft money by political parties and non-party organizations like labor unions has been invited by Buckley (''So long as persons and groups eschew . . .''), authorized by Congress (see 2 U.S.C. sections 431 (8) (A)(I) and (B)(xii) which permit soft money for state elections and voter registration and get out the vote drives), sanctioned and enhanced by rulings of the Federal Election Commission and acknowledged by the Supreme Court in last year's Colorado Republican case which upheld unlimited partisan independent expenditures by political parties on behalf of their candidates. In that case, the Court squarely rejected the sweeping claims that soft money spent by political parties was ''corrupting'' the system and had to be stopped:''
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''We recognize that FECA permits individuals to contribute more money ($20,000) to a party than to a candidate ($1,000) or to other political committees ($5,000. . . . We also recognize 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.'' Colorado Republican Federal Campaign Committee v. FEC, 116 S.Ct 2309, 2316 (1966).
The Colorado case calls into question the constitutionality of many of these various proposals. By a 7 to 2 margin, the Court ruled that even candidate-focused, ''hard money'' expenditures by political parties were fully protected by First Amendment principles and the Buckley precedents. In the Colorado Republican cases, the Court invalidated the FEC rule that treated all candidate-focused, independent party expenditures as though they were ''coordinated'' with the candidate and therefore subject to limitations. In language relevant here the Court held: ''We do not see how a Constitution that grants to individuals, candidates, and ordinary political committees the right to make unlimited independent expenditures could deny the same right to political parties.'' 116 S.Ct. at—. The case for protection for ''soft money'' is even stronger, since it is used by definition for voter registration, get-out-the-vote, ''generic'' advertising like ''Vote Democratic'' and other party-building activities.
The new sweeping limitations and controls on ''soft money'' contributions to and disbursements by political parties and other organizations, federal, state or local, would expand the reaches of the FECA into unprecedented new areas, far beyond what any compelling interest would require. Accordingly, legislative proposals for sweeping limitations on the amount and source of soft money contributions to political parties and disclosure of soft money disbursements by other organizations are not justified by precedent. Disclosure, rather than limitation, of large soft money contributions to political parties, is the appropriate remedy.
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Nonetheless, we recognize that during the last election cycle, many candidates for federal office spent as much time responding to issue advertising and independent expenditures as they did campaigning against the advertising emanating from their opponents. The solution to this problem is not to tamp down on issue advocacy, independent expenditures or soft money contributions in a vague, overbroad and unconstitutional manner. Rather, Congress should lift the individual and PAC contribution limits that candidates have better control and access to larger sums of money necessary to finance their own campaigns, subject, of course, to timely and appropriate disclosure.
B. Independent Expenditures
The Court has repeatedly stated that independent expenditures are at the core of the First Amendment's protection because they embody citizen commentary on government, politics and candidates for elective office. See Buckley v. Valeo, supra; FEC v. National Conservative PAC, 470 U.S. 480 (1985); Colorado Republican Federal Campaign Committee v. FEC, supra. There are a number of ways in which proposed bills would burden and restrain these core First Amendment rights.
First, Section 252 of H.R. 493, the Shays-Meehan bill, broadly expands the definition of ''coordination'' so that virtually any person or group who has had even the most casual interaction with a candidate or a campaign is therefore barred from making independent expenditures. The Colorado Republican case rejected the validity of a conclusive conclusion of impermissible coordination whenever a party made an expenditure in favor of its candidates. Yet H.R. 495 replaces the rejected automatic conclusion with an all but conclusive factual presumption of coordination and therefore limitation.
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Second, the bill imposes a number or new and burdensome reporting and disclosure requirements on those who would make such expenditures. For example, any person or group who spends more than $1,000 to place a small political advertisement in The New York Times—a very small ad—within three weeks of an election must file a report with the government within 24 hours of when they arrange for the ad—before it even runs. (Section 254) Failure to do so can result in civil monetary penalties or injunctive suits be the Federal Election Commission. And what triggers the application of these extensive new controls is any political content which the government might deem ''express advocacy'' under the patently unconstitutional definition of that concept contained in this bill. See infra.
Finally, if significant independent expenditures are made ''in support of another candidate or against'' an eligible candidate, the spending limits of the latter are raised to make it easier to counteract the independent speech. See Section 101 of H.R. 493.
All of this is designed to chill and deter core electoral advocacy.
C. Issue Advocacy
H.R. 493's worst assault on settled First Amendment principles is its efforts to obscure the bright line test of ''express advocacy'' that has been fashioned by the courts for 25 years to protect the broad range of issue discussion in America from campaign finance controls.
Two basic truths have emerged with crystal clarity after twenty years of campaign finance decisions. First, independent expenditures for ''express'' electoral advocacy by citizen groups about political candidates lie at the very core of the meaning and purpose of the First Amendment. Second, issue advocacy by citizen group lies totally outside the permissible area or government regulation. See Buckley v. Valeo, 424 U.S. at 14–15, 78–80. First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978); FEC v. Massachusetts Citizens For Life, 479 U.S. 238, 249 (1986). This bill assaults both principles.
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The Buckley Court could not have been more clear about the need for that bright line, objective test which focuses solely on the speaker's words. That test is an integral part of the First Amendment, no less than the ''actual malice'' rule of New York Times Co. v. Sullivan, 376 U.S. 254 (1964) in defamation cases, or the ''incitement test'' of Brandenburg v. Ohio, 395 U.S. 444 (1969) in subversive advocacy cases.
As noted above, the ACLU's initial encounter with campaign finance laws was to defend against their very first use to try to muzzle that small handful of dissenters who had published an advertisement in The New York Times criticizing the President of the United States. The government claimed that the ad was ''for the purpose of influencing'' the outcome of the 1972 Presidential election. The government was resoundingly rebuffed, and the courts ruled that the campaign finance laws could not be used in such an open-ended fashion to control issue speech. United States v. National Committee for Impeachment, 469 F.2d 1135, 1139–1142 (2d Cir. 1972); see also, American Civil Liberties Union v. Jennings, 366 F. Supp. 1041, 1055–57 (D.D.C. 1973, three-judge court); Buckley v. Valeo, 519 F.2d, 817, 832 (D.C.Cir. 1975, en banc); Buckley v. Valeo, 424 U.S. at 42–45 and 76–80. Instead, ''express advocacy'' would be the bright dividing line between campaign advocacy and issue speech.
These proposals assault that understanding and weaken the protections for issue advocacy by their unconstitutional expansion of the definition of ''express advocacy'' in order to sweep classic issue speech within the zone of regulation and in violation of the objective and categorical First Amendment concept the Court fashioned. The bill abandons the bright line test of express advocacy (words which in express terms advocate the election or defeat of a candidate, such as ''Vote for Smith,'' ''Vote Against Jones,'' ''Elect,'' ''Defeat''), a test which the Supreme Court held was mandated by the First Amendment. Instead, the bill resurrects concepts and language reminiscent of the ''relative to a clearly identified'' candidate language struck down by the Court in Buckley as well as of the flawed provision unanimously struck by the en banc Court of Appeals in Buckley.
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Section 251 of the bill would treat as express advocacy and subject to regulation any communication ''that conveys a message'' that ''advocates the election or defeat of a clearly identified candidate'' or, ''that a reasonable person would understand as advocating the election or defeat of the candidate.'' That Section would also treat as express advocacy a communication made, at any time, that meets the reasonable person test and ''that is made for the purpose of advocating the election or defeat of the candidate, as shown by one or more factors such as a statement or action by the person making the communication, the targeting or placement of the communication, or the use be person making the communication of polling, demographic, or other similar data relating to the candidate's campaign or election.'' Publication of ''box score'' voting records information would be allowed only if the ''communication . . . is limited solely to providing information about the voting record of elected officials on legislative matters and that a reasonable person would not understand as advocating the election or defeat of a particular candidate.'' That circular definition is no safe harbor for issue advocacy about elected officials. That's how incumbents would impede dissemination of information about their voting records and official actions.
This provision, attacking issue ads and legislative advocacy, would sweep in the kind of essential issue discussion which Buckley and cases predating Buckley by a generation, see Thomas v. Collins, 323 U.S. 516 (1945), have held immune from government regulation and control. It seems to be targeted exactly against the kind of voting record, ''box score'' discussion that emanates from the hundreds and thousands of issue organizations that enrich our public and political life. In Buckley, the Court adopted the bright line test of express advocacy in order to immunize issue advocacy from regulation: ''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.'' Id. at 45.
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It is extremely significant that the Act at issue in Buckley contained a similar provision regulating issue-oriented groups because of their ''box score'' and issue advocacy activities. That provision was unanimously held unconstitutional by the en banc Court of Appeals, without any further appeal by the government. See Buckley v. Valeo, 519 F.2d 817, 832 (D.C. Cir 1975). Circuit Judges running the gamut from liberal to conservative were unanimous in their condemnation of that effort to control issue speech.
The new and expanded definition of ''express advocacy'' in H.R. 493 is similarly flawed. It seeks to replace that time-honored concept with the kind of vague and overbroad formulas that Buckley and other courts rejected. The circle has turned full round. Buckley said the First Amendment required that the law could only regulate ''expenditures for commutations that in express terms advocate the election or defeat of a clearly identified candidate for federal office.'' Id. at 14, 80. The very language and concepts that the Buckley Court rejected as permissible definitions of regulatable electoral advocacy have now reappeared in these bills.
First Amendment rights would turn once again on such vague and subjective concepts as whether the communication ''conveys a message'' that advocates the election or defeat of a particular candidate or that ''a reasonable person would understand as advocating the election or defeat'' of a candidate and that is ''made for the purpose of advocating the election or defeat of the candidate as shown by . . . a statement or action by the person making the communication, the targeting or placement of the communication, or the use by the person making the communication of polling, demographic, or other similar data relating to the candidate's campaign or election.'' Indeed, the prospect of subjecting free speech rights to the post facto assessment of a ''reasonable person'' test would undue decades of First Amendment jurisprudence designed to protect First Amendment rights against the vagueness and uncertainty of such a standard.
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Some have attempted to defend these suspect provisions by distorting the meaning of the concept of ''independent expenditure'' as defined by the Court. A communication cannot be defined as an independent expenditure just because it is ''designed to affect the outcome'' of a federal election or because the speaker's ''purpose and effect'' is to advocate the election or defeat of an identified candidate'' or because the speaker's ''predominant intent'' was to do so. The courts have rejected these subjective tests as treacherously dangerous boundary lines to mark First Amendment rights. Under the First Amendment, an independent expenditure is only one which ''expressly advocates the election or defeat'' of a specific candidate. Repeated references to ''so-called 'issue ads' '' or ''phony 'issue acts' '' cannot change that fact. You should reject any bill which would undo 25 years of bright line protection for issue-oriented speech.
These bills are fatally and fundamentally flawed when measured against First Amendment values. They contain tortured twist and turns seeking more and more limits on political funding and therefore on political speech. As we all know, that approach has not worked, and we think it will not work, politically or constitutionally. We think it is time, instead, to explore ways to expand political participation and opportunity that do not entail restricting political speech. As Justice Louis Brandeis reminded us long ago, the time-honored First Amendment way to remedy bad or publicly and privately funded—rather than mandate ''silence coerced by law.'' We look forward to working with you to fashion those remedies.
Mr. CANADY. Thank you, Professor Gora. Mr. Scott.
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Mr. SCOTT. Mr. Gora, on your last point, on that impeach Nixon ad, the comments you made would seem to me to also apply if that had a, one little line in there that suggested to people that if he was not impeached, we can do the next best thing by voting against him. All of the arguments you made in favor of allowing that courageous group to publish the ad would apply to that ad, too, is not that right?
Mr. GORA. You mean if it included what we would consider words of express advocacy?
Mr. SCOTT. Well, impeach Nixon, I think that, I would consider that advocating doing something with the incumbent.
Mr. GORA. I think so, too, Congressman, and I think that is why a test that departs from the bright line test of the express advocacy doctrine does jeopardize this kind of issue speech.
Mr. SCOTT. Well, are you suggesting that the bright line we have now which is easily understood is a meaningful place to put the line?
Mr. GORA. I think, is it a perfect place, no. Is it a place that——
Mr. SCOTT. Is it a meaningful place?
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Mr. GORA. I think it is a meaningful place because it sets forth the concept that you can speak and discuss and raise issues and criticize and comment and praise elected officials who are candidates for re-election, and you know that if you do not expressly advocate their election or defeat, then you have stayed on the protected side of the line, and your speech does not involve the kinds of concerns that allowed the court to uphold regulations.
Mr. SCOTT. I mean, you can understand how to stand on the side of the line, but in other words, you can run 27 seconds of a 30 second commercial and get away with it, totally unregulated, totally unlimited contributions, totally unregulated as to source and amount, and essentially run 27 seconds of exactly the same television commercial as a person running a 30 second, the full 30 seconds would be relegated to, in terms of source of money, amount of money that they can collect, and you see that that is a meaningful difference?
Mr. GORA. Well, I think the problem is if you did not have that line, then even one second of discussion of an issue that affected a candidate during an election season would ensnare the speaker within the reaches of the act. I think that is the problem.
Mr. SCOTT. Well, I guess there are some of the others that think that that is not a meaningful line. I guess the challenge is where would the line be. Anybody want to——
Mr. GORA. If I might just follow up, I certainly think that a line that is based on a subjective concept, such as what the speaker's motive was or the speaker's intent was or the audience's understanding of the speech was, that is not the place to draw the line.
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Mr. SCOTT. I tend to agree with you on that part of it. Maybe somebody who wants to move the line can help us on this.
Mr. ORNSTEIN. Let me say, Congressman Scott, as I listened to some of the speakers today, and I do not want to speak for them, but it seemed to me that if they could have been justices, they would not have drawn any line at all, and they basically would have said should not have any disclosure, any limits, any regulation on any of it. And that is one area where we could obviously have disagreement. If you believe that there ought to be some line, then we get to the question of where is the line and what becomes a meaningful distinction, and I would argue strongly that what we have seen over the last 20 years, if we had had the same kind of process in place in 1972, say, that we had in 1996, and the court sat down in 1976 to try and draw that line, I do not believe they would have drawn that line where they did if they were trying to make a distinction.
If you look at some of the ads, put this Nixon one aside, and look at a whole lot of others, $150 million worth of them that were out there this last time and what will be double, triple, quadruple that the next time, from the parties, outside of what the parties did, and we saw in the Washington Post today how they tried to use this definition themselves to manipulate the process, that it is not a meaningful distinction any more.
I happen to be on the, with Professor Gora, sensitive to the notion of trying to make it a bright line, or as bright as we can, and seeing that we can do so without creating real difficulties for people, and that may involve a simple question of disclosure. Remember that most of the people here who do not want to move the line want no disclosure whatsoever even of the sources of the information. We are not even just talking about limits in what can be done, but no disclosure.
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Mr. SCOTT. So any issue advocacy may be disclosed. Is that the deal?
Mr. ORNSTEIN. Well, presumably we can, if we decide we want to move the line, that Congress, and of course all the court decisions, the inferior court decisions have been done in light of Buckley as it is. That is without Congress having spoken since then to suggest that perhaps we ought to move the line. If you decide to move the line, you could move the line simply for disclosure. You could move the line as well to have speech of this sort be regulated in the same way that the speech of candidates or political committees or independent groups is regulated now with contribution limits as well at this point.
Mr. CANADY. The gentleman will have 2 additional minutes.
Mr. SCOTT. Thank you, Mr. Chairman. Mr. Ornstein, following up on that, do you have a problem with the formal campaign of a candidate coordinating these independent expenditures with others who are running 27 seconds of the candidates own 30 second commercial and paying for it totally outside of the regulated area?
Mr. ORNSTEIN. It seems to me, Mr. Scott, that if we, that we are moving towards a situation where the next time around candidates are going to be out there, and instead of just having the re-elect Scott committee, it will be the Committee for Good Government will raise all kinds of money themselves outside the framework and unregulated and use them for attack ads against their opponents, that we are moving in a direction where any distinction between electioneering and non-electioneering disappears, and so obviously this coordination as it takes place pushes it much further in that direction, and I have a big problem with it.
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Mr. SCOTT. And what do you do about it?
Mr. ORNSTEIN. Well, of course, what we do have is, we have a distinction between independent expenditure groups, which are limited in the same ways, not in terms of what they can lay out, but have to abide by disclosure and contribution limits for groups the same way as candidates do, but they are free from other limits by being independent of the candidates. That is true of the parties now as well. Presumably you can apply that same distinction, and frankly what I would favor is having a much clearer bright line in terms of independence of a group from an candidate.
Mr. SCOTT. I was going to try to get this last question in before this gentleman just walked in. What do you do about newspapers and their ability to influence elections, totally unregulated. If you own one, you have no regulation at all.
Mr. ROSENKRANZ. I do believe that there is a distinction between regulating broadcast communications and newspapers, and I understand Chairman Hyde's sensitivity to the Chicago Tribune, but I think when you draw the line, obviously we draw the line on the side of the press.
Mr. SCOTT. For full disclosure, the gentleman who just came in is with a Chicago Tribune affiliate. Mr. Chairman, can I get 1 additional minute?
Mr. CANADY. The gentleman will have 1 additional minute.
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Mr. SCOTT. Mr. Rosenkranz and Mr. Smith, I think, wanted to comment on some of the questions as we went along, if you would like to.
Mr. ROSENKRANZ. Yes. Thank you, Representative Scott. Just a comment on the question. ''Where else can we draw the line?'' There are any number of proposals out there. I think that some of them could be unconstitutional. Others could be perfectly Constitutional.
Here is one example, and I would challenge anyone to come up with an ad that is truly an issue ad directed at education that would fail this test: An ad is ''electioneering'' if it is broadcast 60 days before the election, cost over $10,000, involves a clearly identified candidate, and the speaker's intent is to influence the election. How do we determine intent? Based on four factors that are described in the legislation. Intrusive discovery into the files of the particular speaker is not permittable unless that speaker opens the door by producing documentary proof of intent himself or herself.
What we are doing is navigating between a Scylla and a Charibdis of overbreadth and vagueness. There are lines in Supreme Court precedent that are perfectly valid under First Amendment law that are much, much vaguer than the magic words test that we currently have in our elections.
Mr. CANADY. Mr. Hutchinson.
Mr. HUTCHINSON. Thank you, Mr. Chairman. Professor Ornstein, let me follow up. You were in here while I was questioning the previous panel, and heard my last question to the gentleman from the Election Commission in Wisconsin about a public file at the television station where groups that spend money for issue advocacy show how much they spend.
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Do you see any distinction between requiring groups that spend money on issue advocacy for radio and television to disclose the amount of money that is being spent and making that information more available to the public versus being in the FCC public files?
Mr. ORNSTEIN. I certainly would not, although clearly you are going to get some different views on that particular issue, but no, I do not, and it seems to me there are reasons for having that information there now that are perfectly valid when it comes to these kinds of groups. The one thing we have to consider here, though, Mr. Hutchinson, and, you know as I see the Congressional investigating committees move forward, everything that they are doing, that they are able to find out now, has basically come from the disclosure that we have with soft money, that they are able to get some information.
We know with some of these issue groups that we have groups that have taken money, channelled it through two or three or four different sources before it comes to some innocuous Americans for Reform and put out there, that if you do not have some kind of disclosure of principles involved here, then it is going to be increasingly difficult even to get a sense of vaguely who the sources are.
Mr. HUTCHINSON. Thank you. Professor Gora, would you comment on what you see as any Constitutional problems, if any, on simply requiring issue groups that spend more than $25,000 on radio or television, from disclosing the name of the organization, an address, and how much is being spent?
Mr. GORA. Well, I do, Congressman. The Supreme Court in the McIntyre case affirmed a fundamental First Amendment right of anonymous speech where issues are concerned.
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Mr. HUTCHINSON. That fact situation was limited to print material in the McIntyre case. It did not address radio or television.
Mr. GORA. I understand. I guess a newspaper ad would be somewhere in between. I do not believe that the basic right of anonymous political speech, which the court reaffirmed in the context of leaflets, but reaffirmed as a general principle, and which I assume the court would apply in other situations beyond just leaflets, that right of anonymous speech is automatically yielded or forfeited because you want your speech to appear on radio and television compared to if you wanted your speech to appear in an ad in the newspaper.
Now, the courts have recognized, and the common understanding is that there may be some greater basis for regulating communication on radio and television than in print media or billboards. But I am not sure whether the difference pertains to your situation. It might be relevant in terms of charging candidates for using time and the like, but I am not sure that the distinction between radio and television and an ad in the newspaper that costs $30,000 for your purposes is that significant in terms of the right of anonymity.
Mr. HUTCHINSON. Well, let me just respond. I think the courts, and you would agree, have made a distinction between the limited broadcast medium of radio and television and their mediums. Although there could be a problem, it is clear that the courts have not ruled on issue yet.
Mr. GORA. Well, right, they have not ruled on that specific issue, and I think——
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Mr. HUTCHINSON. McIntyre has not been expanded to radio or television.
Mr. GORA. No, not yet.
Mr. HUTCHINSON. Let me go on to the issue of soft money for a second. Professor Smith, you cited one particular case which indicated that corporations and labor unions are in the same unique position, since there could be a corrupting influence, so contributions are prohibited directly to a federal candidate.
The courts have upheld this. Do you see any reason that the same corrupting influence would not exist, or the potential for that corrupting influence, for corporations and labor unions, in giving millions of dollars in soft money to the political parties, which clearly is being used to influence those same campaigns that those corporations and labor unions cannot give directly to?
Mr. SMITH. I do not think the court's rulings are based on the idea that there is a particular corrupting influence from corporations or unions, but rather on the view that those are creations of the state that would not normally exist in the old common law and that are given certain advantages that allow them to amass great power, and that for that reason they can be restricted. So I would think the issue is just a little bit different there.
Mr. CANADY. The gentleman's time has expired. The gentleman will have 3 additional minutes.
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Mr. HUTCHINSON. Let me follow up with that, and I would like to get the quote from that case, but the case refers to the language of a corrupting influence. Do you not recall that?
Mr. SMITH. Yes. Austin does, but Austin is also a case of expressed advocacy. The ad specifically stated ''vote for Richard Banstra.''
Mr. HUTCHINSON. That is the point. It is the corrupting influence for that was part of the rationale for sustaining that prohibition on express advocacy.
Mr. SMITH. In the content of expressed advocacy.
Mr. HUTCHINSON. Okay. And so it is prohibitive because of that potential corrupting influence on express advocacy. Would not the same rationale apply to corporations and labor unions, giving millions of dollars for issue advocacy?
Mr. SMITH. No, again, because the court there has held that express advocacy is different from issue advocacy, from general advocacy that is not saying vote for or vote against a particular individual. So to the extent that contributions are made for soft money and that soft money is then used for issue ads, it would seem to be something that would be protected by the First Amendment.
Mr. HUTCHINSON. One final question. We have talked about this bright line, and I just wanted to see how this would come down, the bright line express advocacy versus issue advocacy. Professor Gora, which side would this fall on? Tell your neighbors not to support Dave Travis. This was the Wisconsin case. Would that be express advocacy?
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Mr. GORA. Tell your neighbors not to support Dave Travis? It does not sound like expressly advocating his election or defeat to me.
Mr. HUTCHINSON. Oh, so you think that would be issue advocacy?
Mr. GORA. Well, I do not hear an expressed advocacy of election.
Mr. HUTCHINSON. Well, would anybody disagree with that?
Mr. ORNSTEIN. I would disagree with that. I think even under a narrow magic words test, that would constitute express advocacy.
Mr. HUTCHINSON. In fact, ''support'' is used in a footnote in the Buckley case as one of those magic words.
Mr. GORA. I stand corrected, Mr. Congressman.
Mr. HUTCHINSON. The other one would be ''Someone with a record like Dave Travis should not be representing us in Congress.''
Mr. GORA. Well, I think, if I take your point, that is to be a matter of issue advocacy, and I think that is a matter of issue advocacy. Otherwise, I cannot make any comment that might have any effect on people's attitude about that candidate.
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Mr. HUTCHINSON. Would anybody disagree with that?
Mr. ORNSTEIN. Totally. I mean, those distinctions are without a different, but let it be noted that we are not talking about your being blocked from making any comment. What we are talking about, because people make these comments all the time. They do it under a set of rules where there are limits in what contributions can be made, although individuals can spend whatever they want doing it independently of the candidates, and there is disclosure. They are not being blocked from making those communications. If that is not express advocacy, then we are really talking about, we might as well just eliminate any distinction whatsoever.
Mr. HUTCHINSON. Right now the courts have to determine which side it falls on.
Mr. ORNSTEIN. Of course.
Mr. HUTCHINSON. Under that definition. I appreciate you all engaging with the discussion.
Mr. SCOTT. Did we get an answer as to whether or not people thought that last example was issue or express?
Mr. SMITH. If I could comment briefly on that, the——
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Mr. CANADY. The gentlemen have 1 additional minute.
Mr. HUTCHINSON. Thank you, Mr. Chairman.
Mr. SMITH. Just to comment briefly, it seems that there would be some disagreement even among the people sitting on this panel, so whether or not in fact it would be prohibited speech or not would depend on who had been appointed to the Elections Commission determined to make that decision, and I would suggest that that indicates the problematic nature of this type of regulation.
Mr. HUTCHINSON. Which means you disagree with the bright line test of the Supreme Court? You do not think Buckley v. Valeo is appropriate?
Mr. SMITH. No, I did not say that at all. My understanding of the last example, what was the phrase that you used?
Mr. HUTCHINSON. Well, the phrase was ''Someone with a record like Dave Travis should not be representing us in Congress.''
Mr. SMITH. Okay. That is not directly from Buckley, I do not believe.
Mr. HUTCHINSON. Pardon?
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Mr. SMITH. That is not directly from Buckley.
Mr. HUTCHINSON. No, this is just an example as which side it falls on. Someone has to determine that, not the Federal Election Commission, but the court.
Mr. SMITH. Well, I agree that there is a bright line test, and I think that the courts made clear that that bright line is specific words advocating election or defeat, ''vote for,'' ''vote against.''
Mr. HUTCHINSON. But you would say this would be issue advocacy because it does not use the words ''elect'' or ''defeat?''
Mr. SMITH. Well, let me say this. Again, you need a bright line. Let me say this. If this were run with the sentence before it, saying ''There is an election on Tuesday, and David Travis is up for re-election,'' and then that sentence, I might say that that is the magic words, to use the term. But I think if that ad is simply run, even if it is run a week before the election without some kind of connection to the election, I think it survives.
Mr. ROSENKRANZ. May I?
Mr. CANADY. We will give an additional minute.
Mr. ROSENKRANZ. I think this point has two problems. First of all, in my mind that is clearly expressed advocacy under the strictest ''magic words'' text. The ''support'' language is straight out of Buckley. But what this points up is that even the so-called ''bright line'' is itself murky and the fact that the six of us can sit here and disagree over whether that is ''express advocacy'' or not suggests that perhaps we do not have a bright line rule. We should live with the fact that bright lines are impossible and draw the line where it ought to be, in a realistic place, rather than in a completely artificial place.
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Mr. HUTCHINSON. Thank you, Mr. Chairman.
Mr. CANADY. Thank you. I will recognize myself now. As I have been listening to the whole discussion today, I understand the concerns of the people that are proposing changes in the law, but I really have a difficult time squaring some of these proposals with the clear import of the case in Buckley, and I, the idea of drawing a distinction between electioneering and not electioneering, that just seems to me to not fit what the court said.
The Court in Buckley was very clear in recognizing that things that were not expressed advocacy could have an impact on an election, and could be designed to have an impact on an election. That is right there in the case. I mean, the Court says as 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.
Now, I do not understand how you, Mr. Simon, can square your wishing to, you know, carve the world up differently and create a category that you would call electioneering with what the court says here.
Mr. SIMON. If I may, I agree that the test set by the Court is an express advocacy test, and that is the dividing line. The question is how do we determine express advocacy.
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Mr. CANADY. But then you, if I understood you correctly, are attempting to redefine that in a way that is inconsistent with what the Court has acknowledged in the case.
Mr. SIMON. Well, I do not think the Court, in referring to the so-called magic words in Buckley said that is the only test of express advocacy, and I think in the one subsequent case since Buckley where the Court returned to this question, which was the Massachusetts Citizens for Life case 10 years later in 1986, the Court itself expanded the concept of express advocacy.
Mr. CANADY. Well, but in that case, as I understand it, it said ''Vote for pro-life candidates,'' and people were clearly identified as pro-life.
Mr. SIMON. That is right.
Mr. CANADY. So the magic words, ''vote for'' were used.
Mr. SIMON. Well, that is right, but the Court——
Mr. CANADY. I think we are talking in the proposals that are being advanced of things that go far beyond that, and in some cases just lightyears away from anything, and basically anything that criticizes a public official can be understood to advocate his removal from office. It is just that plain, and it seems to me that if we set up this new framework that is being suggested or some version of the frameworks that are being suggested, we are basically restricting the ability of the American people to criticize public officials.
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Now, I am a public official. I get criticized. I do not enjoy it. I have been attacked in various ads and some issue advocacy, some express advocacy, and at times I felt like, ''Oh, who is doing this,'' you know, ''This is on the radio. Where did that come from?'' And as a candidate I felt like, ''Well, I am not in control here.'' Well, that is reality. Candidates should not be in control of a campaign. The campaign does not belong to the candidates. It belongs to the people, and I just, I think we are getting into an area here which does threaten the core of First Amendment values, and things are being advocated that just do not fit this framework that the court has established at all.
Mr. SIMON. If I could just make two points.
Mr. CANADY. Sure. I am sorry.
Mr. SIMON. First, I just want to reference what the court said in the 1986 case in MCFL because I think it is significant. In discussing the communication at issue in that case, the court said that ''the fact that the message is marginally less direct than 'vote for Smith' '' does not change its essential nature. The addition goes beyond issue discussion to express electoral advocacy.
I think what is important about that is that the court was focussing on the essential nature of the communication without being limited simply to a kind of mechanistic test of magic words or not.
Mr. CANADY. Let me extend my time by 3 minutes, and I understand what you are saying, but right before the words you quoted are these words, ''it provides in effect an explicit directive, vote for these named candidates.''
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Mr. SIMON. And I, the way I read that sentence is the importance of what the court is saying in terms of ''it provides in effect,'' the court is looking at the effect, at the essential nature of the speech in determining whether it constitutes express advocacy or not, and I read that as providing more room in this express advocacy test than just this mechanistic, mindless application of magic words.
Mr. CANADY. Well, why is it not true that any criticism of a public official in effect is advocating that public official's removal from office? I will guarantee you, and I have talked to some of my colleagues who recently have been subjected to radio and television ads which I do not think really were aimed at defeating them or removing them from office. I think it was aimed at getting their attention on a particular issue. They felt that those ads were put on the air in an effort to help defeat them.
It seems to me that if, once you break down this barrier, then everything is up for restriction and we are going to end up in a situation where the FEC and the politicians are basically tightly controlling how much can be said in criticism of public officials.
Mr. SIMON. Well, Congressman, I guess I just do not despair as you do about our inability to draw an effective, administrable, realistic line to try to separate issue discussion from——
Mr. CANADY. Well, what is the line?
Mr. SIMON. Well, there have been various lines that have been proposed——
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Mr. CANADY. Well, what do you think would be effective and not subject to abuse?
Mr. SIMON. Well, you could look at the line that was drawn by the Ninth Circuit, a line that that court said was consistent with the First Amendment, which I think is quite protective of issue discussion, where the court talked about that the speech was clearly and unambiguously advocating the election or defeat, was susceptible of no other interpretation because it was unmistakable. I mean, that is a very protective test. That test may be somewhat too narrow, but I think illustratively it shows how other kinds of lines can be drawn in this area.
Ultimately, this is going to be something, whatever test we set up, it is going to be subject to interpretation by the courts and application by the courts, but I just do not think that we have to be stuck with a test that we know does not work, that we know does not draw an effective line between regulable speech and non-regulable speech.
Mr. CANADY. If there is no objection, I will grant myself 2 additional minutes and recognize Mr. Ornstein.
Mr. ORNSTEIN. Mr. Canady, we are talking about what awful things would happen if we moved the line. Let me look at it from the other side. I would suggest to you, especially from what you saw on this panel with the disagreement about Mr. Hutchinson's words and whether they fit, that we are moving toward no line, in effect. The notion that if you simply use the four magic words then everything gets regulated and everything else is completely outside the ken, we have already moved considerably towards a situation where in effect any federal election laws are meaningless, and we will move further in that direction, and we will have candidates, parties as we saw in a massive way, and everybody else moving in with very, very large sums of money from foreign sources, from corporations, from unions, with no regulation and in fact that might lead to an even worse chilling effect.
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The reason that these blanket subpoenas were issued as we looked at trying to root out corruption in this process, by the Senate Committee, was because there was no effective disclosure or information available otherwise, and the chances of having a violation of basic rights, of having a system where there is no real discourse and no accountability in this process, no disclosure, no sense of where communications are coming from in any fashion, money of unlimited amounts in any fashion coming forward will be much greater, and with that at least, we might as well move away from the sham of the ''do little'' approach, saying, ''Well, we can fall back on disclosure if we deregulate everything.'' We will not fall back on disclosure, we will fall back on nothing.
Mr. CANADY. Let me ask you this, Mr. Ornstein. How would the proposal that you have advanced affect issue advocacy paid for by wealthy individuals?
Mr. ORNSTEIN. In the same way that wealthy individuals now can put whatever sums of money they want to into independent expenditure campaigns but have to disclose those expenditures, you would have the same thing. If we are talking about broadcast communications, and I think the distinction that Josh has made where you can set a threshold level so that you do not draw in small groups.
Mr. CANADY. Well, my additional time has expired. Would the members be interested in a second round of questions?
Mr. SMITH. Mr. Chairman, if I may before you close the hearing, because I wanted to get this in before you close, I would like if there is no opposition to doing so, I would like to include in the record a copy of the Common Cause press release which I alluded to earlier, and I will make that available to the Committee simply because I think it would be good to compare that to a case in which in fact they had been found to have a violation.
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Mr. CANADY. Without objection, that will be included in the record. Mr. Scott.
Mr. SCOTT. Mr. Chairman, I would just ask the panel if they have any closing comments. I think there were a couple of questions where it looked like some of them wanted to comment on.
Mr. ROSENKRANZ. Mr. Chairman, just to respond in a slightly different way to your question about Buckley: I read Buckley slightly differently. Buckley came up in the context of a particular Congressional enactment that chose particular language that was grossly overbroad, language like ''purpose'' or ''relative to.'' The court in that case, as in many other cases was basically saying, ''Look, Congress, we are not going to re-write the statute for you. We are going to impose the narrowest possible reading of what you could possibly have meant, which is express advocacy.''
The sentence that, Mr. Chairman, you pulled out of Buckley was referring to not an absolute right to engage in all speech, using any sources of money, as long as the speech did not use express advocacy. Rather, it referred to the scheme of that particular statute where Congress itself had left open that possibility. That does not hobble a legislature or Congress from setting up new rules, different rules, that are objectively definable, that have lines that are clear or as clear as other First Amendment lines that are still as protective of First Amendment rights.
Mr. CHAIRMAN. Do any other members of the panel wish to make any comments? Mr. Smith?
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Mr. SMITH. Sure, I would like to make a couple of quick comments, I guess. First, again, Buckley, the language that was used in Buckley is basically the same as is used in all the proposals before the House now except for these proposals which purport to define what is meant by reference to certain factors, and as I pointed out earlier, and as Mr. Bopp pointed out in the first panel, those things were expressly considered by the court and expressly addressed in Buckley, and said these would not make a difference.
A couple of other comments, I think, are just worth making very briefly. I appreciate very much what Mr. Hutchinson is trying to do in terms of addressing what he views as a problem in a way that does not infringe on free speech rights. I do think it is important to put on the record, McIntyre is not a case limited to print media. It is true that those are the facts of the case. It would be better to describe it as a case in which the court has not specifically expanded it to broadcast media, but they gave no exception for broadcast media in that case, and indeed the Ohio, the state of Ohio, argued in that case that a reason that they needed the disclosure laws for this type of anonymous pamphleteering was to make sure that the other laws were not being violated, that campaign finance laws were not being violated, and the court simply did not buy that argument.
And two other quick comments if I could, I mean, one response here is to say we need a bright line, but Mr. Orstein suggests that we draw it at a place that I think most people would agree is totally unacceptable, which is to say you simply cannot talk politics within the last 30 days, and I would point out that in 1995, more than a year before the elections, the Democratic National Committee began running issue ads. So I do not know why 30 days is going to solve the proposed problem.
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As far as the other approach, is to take something and say, ''I can think of one hypothetical where a court has a difficult time drawing a bright line, so let us make the line even vaguer.'' I do not think that goes anywhere. Again, the main problem that was struck down in Buckley was vagueness.
My friend Josh, and he is my friend although we like to go at one another, has a couple of times alluded to the idea that you are negotiating between Scylla and Charibdis. I just point out to the Committee that wise sailors knew that you did not try to do that. You stayed away from the area, and all the people who did not get killed, except for Odysseus who merely got shipwrecked and stranded in the ocean for a long time. Thank you very much.
Mr. CANADY. Thank you. Any other brief concluding remarks?
Mr. GORA. Scylla and Charibdis are a hard act to follow.
Mr. CANADY. Well, on that note, we will conclude the hearing. We are grateful for your contribution. Your testimony has been very helpful. The subcommittee is adjourned.
[Whereupon, at 1:50 p.m., the subcommittee was adjourned.]
A P P E N D I X
Material Submitted for the Hearing
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STATEMENT OF JOHN CONYERS, JR.
Its interesting to me that the same Republican Majority which has proposed seven separate constitutional amendments has found refuge in the First Amendment on the issue of campaign finance reform. The problems associated with issue advocacy are just another example of the issue in the campaign finance reform controversy—too much money. The Republicans want us to think that there are other reasons why campaign finance has gotten so out of control, but they don't want to talk about the fact that there is too much money in politics today. Don't be fooled—after all of the rhetoric has settled, three things should be clear:
First, the American public overwhelmingly favors campaign finance reform. Campaign spending has gone up astronomically—according to the Washington Post, during the most recent election cycle, parties and candidates spent a record $2.7 billion. And a recent NBC/Wall Street Journal polls shows that 92% of the public believes there is too much money spent on politics.
Second, the Republican Party has absolutely no interest in changing the laws to clean up the campaign finance system. Shortly after Speaker Gingrich broke his promise to President Clinton to appoint a bipartisan task force to consider reform, he testified that we need ''far more money in the political process.'' And last week at an exclusive gathering of contributors, Majority Leader Lott declared that unlimited donations ''were the American way.''
Third, concerns that leading statutory reform proposals are fatally unconstitutional are misleading at best, and disingenuous at worst. There is nothing in the First Amendment which prevents Congress from creating a voluntary system of incentives to limit campaign spending. As a matter of fact, a similar scheme was specifically upheld by Buckley in the Presidential context. Similarly, the courts have given Congress significant leeway in limiting the influence of ''soft money'' and PACs.
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The truth of the matter is there is another reason the Majority party is so hesitant to tackle this particular issue—money. Last year Republicans retained their majority by winning ten races by a total of 9,700 votes—and the average Republican advantage in those races was $372,000. The last thing the Republicans want to do is sacrifice this important fundraising advantage.
Thank-you Mr. Chairman, and I look forward to today's testimony.
STATEMENT OF COMMON CAUSE PRESIDENT ANN MCBRIDE ON SHAM CAMPAIGN FINANCE REFORM HEARING BY THE SENATE RULES COMMITTEE
For Immediate Release:
Wednesday, May 14, 1997
The biased and rigged campaign finance reform hearings opening in the Senate Rules Committee today are a total sham.
Rules Committee Chair John Warner, egged on by status-quo-protector Senator Mitch McConnell, has lined up a list of witnesses who share this in common: They all oppose efforts to clean up the corrupt campaign money system in Washington.
The Rules Committee hearings are a stark illustration of how Washington insiders circle the wagons and manipulate the system to keep out the views of the American people—90 percent of whom want to see fundamental campaign reform, according to recent polls.
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In past Congresses, Rules Committee hearings on campaign reform have been fair, always allowing opposing views to be heard. What is Senator Warner afraid of? The American people hearing ideas that he doesn't agree with? The American people hearing the truth?
Senator McConnell likes to raise the issue of free speech when it comes to campaign finance reform. But Senator McConnell and Senator Warner have designed hearings that give free speech only for people who represent the anti-reform position.
The American people and those watching on C–SPAN should not be fooled. These Rules Committee hearings are nothing more than a blatant attempt to scuttle real reform.
47–937 CC
1997
THE FIRST AMENDMENT AND RESTRICTIONS ON ISSUE ADVOCACY
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
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COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
FIRST SESSION
SEPTEMBER 18, 1997
Serial No. 43
Printed for the use of the Committee on the Judiciary
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 SMITH, Texas
STEVEN SCHIFF, New Mexico
ELTON GALLEGLY, California
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CHARLES T. CANADY, Florida
BOB INGLIS, South Carolina
BOB GOODLATTE, Virginia
STEPHEN E. BUYER, Indiana
SONNY BONO, California
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRISTOPHER B. CANNON, Utah
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
CHARLES E. SCHUMER, New York
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
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WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
THOMAS E. MOONEY, Chief of Staff-General Counsel
JULIAN EPSTEIN, Minority Staff Director
Subcommittee on the Constitution
CHARLES T. CANADY, Florida, Chairman
HENRY J. HYDE, Illinois
BOB INGLIS, South Carolina
ED BRYANT, Tennessee
WILLIAM L. JENKINS, Tennessee
BOB GOODLATTE, Virginia
BOB BARR, Georgia
ASA HUTCHINSON, Arkansas
ROBERT C. SCOTT, Virginia
MAXINE WATERS, California
JOHN CONYERS, Jr., Michigan
JERROLD NADLER, New York
MELVIN L. WATT, North Carolina
KATHRYN HAZEEM LEHMAN, Chief Counsel
KERI D. HARRISON, Counsel
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JOHN H. LADD, Counsel
ROBERT J. CORRY, Counsel
C O N T E N T S
HEARING DATE
September 18, 1997
OPENING STATEMENT
Canady, Hon. Charles T., a Representative in Congress from the State of Florida, and chairman, Subcommittee on the Constitution
WITNESSES
Bopp, James, Jr., attorney, National Right To Life Committee, Inc., and Wisconsin Right To Life, Inc.
Buchen, James A., vice president of government relations, Wisconsin Manufacturers and Commerce
Dunst, George A., counsel, Wisconsin State Elections Board
Gora, Joel M., dean, Brooklyn Law School, and counsel, American Civil Liberties Union
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Merican, Steven, president of Americans for Limited Terms
Ornstein, Norm, American Enterprise Institute
Rosenkranz, E. Joshua, executive director, Brennan Center for Justice, New York University
Simon, Donald J., executive vice president and general counsel, Common Cause
Smith, Bradley A., associate professor of law, Capital University Law School
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Bopp, James, Jr., attorney, National Right To Life Committee, Inc., and Wisconsin Right To Life, Inc.: Prepared statement
Buchen, James A., vice president of government relations, Wisconsin Manufacturers and Commerce: Prepared statement
Dunst, George A., counsel, Wisconsin State Elections Board: Prepared statement
Gora, Joel M., dean, Brooklyn Law School, and counsel, American Civil Liberties Union: Prepared statement
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Merican, Steven, president of Americans for Limited Terms: Prepared statement
Rosenkranz, E. Joshua, executive director, Brennan Center for Justice, New York University: Prepared statement
Simon, Donald J., executive vice president and general counsel, Common Cause: Prepared statement
Smith, Bradley A., associate professor of law, Capital University Law School: Prepared statement
APPENDIX
Materials submitted for the Hearing
(Footnote 1 return)
The author thanks attorneys Richard E. Coleson, Robert J. Newmeyer, and Paul R. Scholle of the law firm of Bopp, Coleson & Bostrom for research and writing assistance.
(Footnote 2 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).
(Footnote 3 return)
Some of the material below is adapted from the testimony and article cited.
(Footnote 4 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 5 return)
The Buckley Court also quoted approvingly the comments of the United States Court of Appeals for the District of Columbia, which it affirmed:
''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)).
(Footnote 6 return)
Until recently, the FEC has taken the position that corporate expenditures made in coordination with a candidate were permissible if the ''[c]orporate donations [were] made for non-political purposes.'' Orloski v. Federal Election Commission, 795 F.2d 156, 160 (D.C. Cir. 1986). Thus, an event for a congressional candidate which was paid for by a corporation (and thus ''coordinated'' with the candidate) was considered ''non-political [by the FEC] if (1) there is an absence of any communication expressly advocating the nomination or election of the congressman appearing or the defeat of any other candidate, and (2) there is no solicitation, making, or acceptance of a campaign contribution for the congressman in connection with the event.'' Id.
(Footnote 7 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 8 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 9 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 10 return)
11 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 11 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 12 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 13 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 14 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.
(Footnote 15 return)
Many of the requests demand documents regarding a ''federal candidate.'' The Committee staff advises that the committee views a ''federal candidate'' to include (1) any elected federal official from the date of their election until they are out of office or publicly declared that they will not run for reelection.
The breadth of the demand for documents is especially troubling since they are to be turned over to politicians and their staff whose political and legislative agendas are sometimes at odds with our client and since the documents are subject to being made public at the whim of any Committee member. This threat of public exposure of confidential documents by politicians potentially seeking partisan political advantage imposes a substantial chill on the future constitutionally protected activities of the groups subpoenaed.
While the Committee is supposed initially to protect the ''confidentiality'' of the documents that are submitted, this assurance is essentially negated by three qualifications:
(1) Any document may be made public at any subsequent hearing of the Committee (including, if any Committee member so desires, by being displayed on C–SPAN),
(2) All produced documents will be privately accessible to the members of the Committee, and
(3) All produced documents will be accessible to a substantial number of congressional staff persons, many of whom are simultaneously engaged in legislative battles on opposite sides from the various organizations whose internal legislative documents they will be examining.
In short, even if a given document is not made public, the information contained in it will be accessible to politicians who may use the information to guide their legislative strategies in ways inimical to the goals of the organization which produced the documents, in contexts far removed from controversies over federal election laws.
(Footnote 16 return)
It can hardly be expected that the United States Supreme Court would ignore this reality. See United States v. Rumely, 345 U.S. 41, 44 (1953) (''[W]e would have to be that 'blind' Court, against which Mr. Chief Justice Taft admonished in a famous passage, [cite omitted], that does not see what '[a]ll others can see and understand' not to know that there is wide concern, both in and out of Congress, over some aspects of the exercise of the congressional power of investigation.'').
(Footnote 17 return)
As many groups can attest, the Republican staff defers to the Democrat staff regarding ''minority requested'' subpoenas and vice-versa.
(Footnote 18 return)
In fact, the Fourth Circuit has recently assessed attorneys fees against the Federal Election Commission for instituting an enforcement action against a citizens' group for running an advertisement that criticized President Clinton's positions on issues, despite the fact that the advertisement did not contain express advocacy. FEC v. Christian Action Network, 110 F.3d 1049, 1064 (4th Cir. 1997) (''Explicit words of advocacy of election or defeat of a candidate, express words of advocacy, the [Supreme] Court has held, are the constitutional minima.''). See also FEC v. Central Long Island Tax Reform Immediately Committee, 616 F.2d 45 (2nd Cir. 1980); Faucher v. FEC, 928 F.2d 468 (1st Cir. 1991); FEC v. Christian Action Network, 894 F. Supp. 946 (W.D. Va. 1995), aff'd, 92 F.3d 1178 (4th Cir. 1996) (per curiam); Maine Right to Life Committee v. FEC, 914 F. Supp. 8 (D. Me. 1996), aff'd, 98 F.3d 1 (1st Cir. 1996) (per curiam); West Virginians for Life v. Smith, 919 F. Supp. 954 (S.D.W. Va. 1996). See generally Bopp & Coleson, The First Amendment is Not a Loophole: Protecting Free Expression in the Election Campaign Context, 28 UWLA L. Rev. 1 (1997).
(Footnote 19 return)
To contain ''express advocacy,'' the communication must contain explicit words of advocacy, such as ''vote for,'' ''elect,'' ''support,'' ''cast your ballot for,'' ''Smith for Congress,'' ''vote against,'' ''defeat,'' ''reject.'' Buckley, 424 U.S. at 44 n. 52.
(Footnote 20 return)
This is true even if the issue advocacy is ''coordinated'' with a candidate. Buckley, 424 U.S. at 78–80 (holding that the terms ''contribution'' and ''expenditure,'' in the Federal Election Campaign Act, ''reach only funds used for communications that expressly advocate the election or defeat of a clearly identified candidate'' in order to protect issue advocacy). See also Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986); FEC v. Colorado Republican Federal Campaign Committee, 839 F. Supp. 1448 (D. Col. 1993), rev'd, 59 F.3d 1015 (10th Cir. 1995), aff'd on other grounds, 116 S. Ct. 2309 (1996).
(Footnote 21 return)
In fact, the subpoena specifically demands, in Request 7, all documents under the purview of Douglas Johnson, the Federal Legislative Director of NRLC, including those relating to all communications with any member of Congress. This Request, therefore, directly and specifically targets the legislative lobbying activities of NRLC.
(Footnote 22 return)
This language is identical to that included in U.S. Senate Bill S. 25, the ''McCain-Feingold'' bill.
(Footnote 23 return)
That provision, 2 U.S.C. Section 437a, provided, in pertinent part as follows:
Any person (other than an individual) who expends any funds or commits any act directed to the public for the purpose of influencing the outcome of an election, or who publishes or broadcasts to the public any material referring to a candidate (by name, description or other reference) advocating the election or defeat of such candidate, setting forth the candidate's position on any public issue, his voting record, or other official acts (in the case of a candidates who holds or has held Federal office), or otherwise designed to influence individuals to cast their votes for or against such candidates or to withhold their votes from such candidate shall file reports with the Commission as if such person were a political committee.
In invalidating it, the en banc court observed: ''Public discussion of public issues which are also 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 exercise some influence on voting at elections. In this milieu, where do ''purpose'' and ''design[]'' ''to influence'' draw the line.'' 519 F.2d at 875. In light of the unacceptable vagueness and overbreadth of this section of the Act, the court found the provision unconstitutional, and no appeal was taken by the government.
(Footnote 24 return)
In addition to instances where the Commission has brought enforcement proceedings, there have been other instances where the Commission has entertained and investigated, although ultimately dismissed, complaints against a whole host of issue advocacy groups where the complainants contended that the issue advocacy had crossed the line. In the mid-1980's a conservative political action group filed administrative charges against more than a dozen liberal issue organizations claiming that their literature and statements criticizing then President Reagan and other incumbent officials violated various provisions of FECA. The groups included: the National Organization for Women, Gray Panthers Project Fund, National Mobilization for Survival, Environmental Task Fund, Committee for Sane Nuclear Policy, Ground Zero, Disarm Education Fund, Wilderness Society, National Women's Political Caucus, Coalition for A New Foreign and Military policy, and the American Civil Liberties Union. See The Washington Post, November 2, 1984, p. A6.