Subject: Re: Democrats go after Club for Growth for issue ads
From: Rick Hasen
Date: 5/15/2003, 8:04 PM
To: election-law_gl@majordomo.lls.edu
CC: Marty Lederman <marty.lederman@comcast.net>, "Bauer, Bob-WDC" <RBauer@perkinscoie.com>, Trevor Potter <TP@capdale.com>

Before getting to the merits of Marty's point, let me first note that I see the chances of the lower court issuing an order going back to the full backup definition as extremely unlikely. Judge Leon is already on record saying that the amputated portion of the backup provision is unconstitutionally vague. What could he say now? "Oops. Let's add it back in.  I now see that I made things worse by lopping it off."? It is more likely that either he votes for a stay of the judgment (or the electioneering portion of the judgment) thereby restoring the primary definition (which he said was overbroad) or votes for no stay. Voting to impose a stay still poses a contradiction for Judge Leon given his position on overbreadth, but is more of an acknowledgment that the three-judge-court didn't reach any confident conclusions than a direct undermining of his reasoning.

Now on to the merits. Marty's question goes to the heart of the question about regulating electioneering. As I see it, there are three positions one can take on the question of requiring disclosure of the source of  electioneering communications and prohibiting direct payment for such communications with corporate and union money:

(1) The first position is that most electioneering simply cannot be regulated constitutionally. This position either fails to acknowledge that there is a distinction between electioneering and genuine issue advocacy (the position of Judge Henderson and the 4th Circuit in the Christian Action Network case) (a position I believe is intellectually dishonest) or acknowledges the distinction but believes that any constitutional limit will be ineffective because it is easy to circumvent a magic words test and the alternatives raise insurmountable vagueness or overbreadth problems (an intellectually honest position, but one with which I disagree). The upshot of this approach is that there would be no disclosure of funding for most electioneering communications and no effective limits on corporate and union involvement in the political process.

(2) The second position is an intent-based approach. In this family are Furgatch and the backup definition of BCRA.  It is a test based upon what a reasonable viewer would plausibly conclude about whether an ad is an electioneering communication. The obvious problem here is one of vagueness. First, do we know it when we see it? Second, who gets to make the determination of what a reasonable viewer would plausibly conclude?

(3) The third approach is a bright line approach that trades vagueness for overbreadth. Putting aside Judge Henderson, who I believe indefensibly concluded that the BCRA's primary definition is vague (it is not, at Judge Kollar-Kotelly amply demonstrated), the bright line test eliminates vagueness. But the test, based on timing, presence of the name or image of a candidate for federal office, and targeting to the relevant electorate, will still capture some genuine issue advocacy. The question is how much will it capture, and if so, is it too much under the Supreme Court's substantial overbreadth doctrine?  I''ve written about this, most fully, in Measuring Overbreadth: Using Empirical Evidence to Determine the Constitutionality of Campaign Finance Laws Targeting Sham Issue Advocacy, 85 MINN L. REV. 1773 (2001).

I don't know if the DSCC complaint applies the full backup definition to explain how the Club for Growth ad cannot be understood as anything other than electioneering against Daschle. (Is the complaint publicly released?)  The conclusion seems plausible based on the press reports, but I would want to know more about the context in which it was run. I personally have a greater affinity for the bright line test---I think it raises fewer constitutional questions (it doesn't vest as much discretion in the hands of elected officials), and captures electioneering at the time we care about it the most: the short period before the election when the country is focused on electioneering.

Indeed, perhaps the best test is one that combines 2 and 3, a bright line test, with a safe harbor that lets an advertiser off the hook when the advertiser can show a reasonable viewer could not conclude the ad is electioneering.  Dan Lowenstein and I suggest such an approach in our casebook at 921 ("Would it be a good idea to combine Briffault's bright line test with the reasonable viewer test, so that both would have to be satisfied in order for an ad without express advocacy to be treated as election speech?  Would the combined test be more likely than the bright line test to be found constitutional? Less likely?") I must credit Dan with raising this issue during the course of our drafting the second edition.

Rick

Marty Lederman wrote:
OK, but what about if the court (i.e., Judge Leon) goes back to the
"nonamputated" version of the backup provision -- that is to say, Furgatch?
Is Bob Bauer correct that the ad in question could only be understood, by
any reasonable listener, as intended to influence the SD Senate election?


----- Original Message -----
From: "Rick Hasen" <Rick.Hasen@lls.edu>
To: "Bauer, Bob-WDC" <RBauer@perkinscoie.com>;
<election-law_gl@majordomo.lls.edu>; "Trevor Potter" <TP@capdale.com>
Sent: Thursday, May 15, 2003 8:01 PM
Subject: Re: Democrats go after Club for Growth for issue ads


  
I think Bob's post is a nice illustration of what is wrong with Judge
Leon's opinion: his amputated definition of electioneering
communications provides neither safety valve contained in the BCRA
itself: (1) a strict time limitation, as appeared in the bright-line,
primary electioneering definition that Judge Kollar-Kotelly voted to
uphold; or (2) an intent-based test to make sure that the ad could not
plausibly be understood as anything other than electioneering, as
appeared in the pre-amputated version of the backup definition. Both of
these provisions serve the goal of requiring disclosure and regulating
as much electioneering by corporations and labor unions as possible
without capturing more genuine issue advocacy than necessary to meet the
compelling interests that the state has in regulating campaign finances.

The problem I have with the DSCC moving now is that a stay could come at
any time from the lower court, thereby restoring the primary definition.
Was there a need to rush this? Is advertising 18 months before the
election really going to be so devastating to Sen. Daschle that the
committee could not wait a week?  No one I know thinks Leon's version
will stand. I see no compelling reason for the DSCC to move so quickly
other than for public relations purposes.

Rick


Bauer, Bob-WDC wrote:

    
Speaking here as an advocate in this matter, but certainly with full
confidence in the merits of our position, let me take issue with some
assumptions behind Rick's comments.

Application of the "backup" definition to ads 'run now'? Why exactly not?
The definition is not time-limited, as the primary definition was. And I
have heard night and day how the reform communty is delighted with Leon's
broadening definition that applies the ban. throughout the cycle.

The Senate campaign in SD is in full gear and thse who doubt it should
consult the local press. And Daschle is a candidate for reelection.

Club for Growth is clearly not expecting to pressure Daschle into
      
adopting
  
the President's economic program. If this is not a "sham" issue ad,
concerned with damaging Daschle rather than moving him on the issue, what
is?

And I have read much in the decision about the law's appropriate
      
attention
  
to factors such as ad content, reflecting the election-related intent and
influence of the ad.

And what in any event is the significance of timing? The outcry over
      
issue
  
advertising focused in large measure on Clinton's off-year ads in 1995.
      
Not
  
to mention the arguments heard time and again that campaigns are
      
beginning
  
earlier and earlier and involving more and more money.

The law is what it is, whatever anyone may conclude about its wisdom or
eventual vindication in the courts.

I saw Trevor this am at the Penn symposium and noted this Complaint. I
expected him to volunteer some help from the Campaign
Legal Center--but he was noncommittal on the whole subject. Perhaps he is
mulling it over.



      
--
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
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html




    


  

-- 
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
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html