The Ninth Circuit has just decided a campaign finance case with potentially
important ramifications for the BCRA litigation. (Thanks to How Appealing for the pointer.)
In the case, California
Pro-Life v. Gettman, the Ninth Circuit upheld California's authority
to regulate express advocacy in ballot measure campaigns, particularly to
require disclosure of the funding of such advocacy. This issue is important
in its own right, because some opponents of campaign finance regulation have
been trying to use a Supreme Court case called McIntyre to knock out
as much disclosure law as possible. The court held:
Express ballot-measure advocacy is not constitutionally sacrosanct speech.
California may regulate it, provided that California has a constitutionally
sufficient interest in doing so. California may well have a compelling interest
in informing its voters of the source and amount of funds expended on express
ballot-measure advocacy. Even if compelling, California’s informational interest
in required disclosure is not without limitation: unnecessary administrative
and organizational requirements will not pass constitutional muster. The
district court shall determine on remand whether California in fact has a
compelling informational interest justifying its disclosure laws. If so,
the court must then determine whether the means chosen by California comport
with the First Amendment.
Disclosure issues arise in the BCRA litigation, but not on the question of
ballot measure express advocacy. The case's significance for the BCRA litigation
comes from the fact that the Ninth Circuit discusses its case of FEC v.
Furgatch, 807 F.2d 857 (9th Cir. 1987). Furgatch was the basis
for the backup definition of electioneering communications in BCRA. In today's
case, the Ninth Circuit clarifies what Furgatch means:
But standing apart from other circuit precedent is our decision in FEC v.
Furgatch, 807 F.2d 857 (9th Cir. 1987). Furgatch eschewed a “magic words”
approach to determining express advocacy. “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.” Id. at 863. We therefore held in Furgatch that express advocacy may
be determined by looking at the communication “as a whole” and by giving
some consideration to context. Id. at 863-64.
California and amici argue that, under Furgatch, we must uphold the PRA’s
regulation of those communications that when “taken as a whole and in context
unambiguously urge[ ] a particular result in an election.” Indeed, Furgatch
instructs that the communication may be considered “as a whole” when determining
express advocacy. But a close reading of Furgatch indicates that we presumed
express advocacy must contain some explicit words of advocacy. See
id. at 864 (noting that “context cannot supply a meaning that is incompatible
with, or simply unrelated to, the clear import of the words”). “Context,”
we emphasized, “remains a consideration, but an ancillary one, peripheral
to the words themselves.” Id. at 863.
(footnote omitted) There is more discussion of Furgatch in the case bound
to interest anyone who cares about BCRA's backup definition.
--
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA 90015-1211
(213)736-1466 - voice
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlaw.blogspot.com