Subject: Re: Is BCRA's Stand By Your Ad provision constitutional?
From: Rick Hasen
Date: 11/15/2003, 7:29 PM
To: Marty Lederman
CC: election-law <election-law@majordomo.lls.edu>

Marty is right that my objection goes solely to the form of the sponsorship disclosure and not to the fact that it applies to electioneering communications.

 I simply don't think it is credible to claim that the purpose is to make disclosure more effective.  That could be done without requiring that the candidate himself or herself make the statement accompanied by a visual. 

It is true that all disclosure has an element of "forced speech" to it, and usually that is okay because of the government's compelling interests in disclosure (information, anti-corruption, and assisting in other campaign finance regulations)---though here with disclosure of the candidate's identity the only interest is in providing information (the funding information gets filed in a separate report).  But the information interest could be met as easily without the candidate actually speaking the words accompanied by the candidate's visual (if a tv ad).  "AUTHORIZED BY JONES FOR PRESIDENT" on the screen and spoken by a voice-over announcer will get the same message out whether or not it is accompanied by Jones's own voice (and perhaps with or without that picture).

The other purpose is obvious; the reason this provision is referred to informally as the "stand by your ad" provision is that it seeks to make candidates think twice before so visibly attaching themselves to an attack ad.  Unless a court would close its eyes to the obvious purpose of the provision, I don't see how dressing it up as "effective" disclosure would work.

Rick

Marty Lederman wrote:
Section 311(d) is no more "content-based" than any of the other disclosure provisions that Rick has so ably defended.  And the U.S. is not asserting any interest "in insuring civility in debates," so that's not a problem, either. 
What, then, is the constitutional problem? 
 
The basic sponsorship disclosure requriement has applied to political broadcast advertising for decades, without ever seriously being challenged.  BCRA makes two principal changes:  (i) It expands the disclosure requirement to cover "electioneering communications"; and (ii) it requires that the sponsorship disclosure take a certain form.  The first expansion is constitutional for the reasons so persuasively canvassed in Rick's own amicus brief.  I assume, therefore, that Rick is objecting to the second requirement, namely, that candidate sponsorship of the ad be conveyed on TV by "an unobscured, full-screen view of the candidate making the statement, or the candidate in voice-over, accompanied by a clearly identifiable photographic or similar image of the candidate," and on radio by "an audio statement by the candidate that identifies the candidate and states that the candidate has approved the communication."
 
The purpose of this new format requirement is, quite manifestly, to ensure sure that the viewer/listener is aware of the sponsorship.  The prior format for identification was the "matchbook-sized" or "postage stamp-sized" picture, which Congress concluded was ineffective is communicating sponsorship to the electorate.  The "Stand By Your Ad" provision makes the sponsorship more apparent (in the same way that size and color and sound, etc., requirements are imposed on food and drug labeling requirements).
 
In an e-mail exchange, Rick has suggested that perhaps the format requirements impose too much of a "forced speech" burden on the advertisers, e.g., by crowding out other important information that could be conveyed in a 30-second spot, without making the sponsorship disclosure materially more effective.  I don't quite see that as being a fatal objection here, but I suppose it might depend on some empirical showings of efficacy and cost.
 
Rick also has suggested to me that the problem with section 311(d) is that the congressional history shows that it was not enacted in order to make disclosure more effective, but instead to prevent "negative" campaigning, a consitutionally impermissible purpose.  I'm not familiar with the legislative history.  I would note, however, that the provision is content-neutral on its face -- unlike section 305 and other provisions, it is not limited to "negative" ads or "attack" ads.  Moreover, the chief sponsor of the provision, Rep. Price, insists in his amicus brief (http://www.campaignlegalcenter.org/attachment.html/amicus.d.members.pdf?id=883) that section 311(d) is unlike section 305 in that it's not focused on negative ads, and he defends the provision entirely on a "clarifying sponsorship disclsoure" rationale.  It appears, therefore, that the permissible purpose was likely at least a sufficient (or even a "but for") cause of the enactment, even if some legislators might have voted for it because of the impact on negative ads.  I would also note that, if the evidence of some impermissible purpose by some legislators were sufficient to invalidate a statute, then most of the principal provisions of BCRA would be invalid, because (as the NRA brief explains) at least some of the representatives voting for BCRA did so because of reasons that are constitutionally suspect.
 
In any event, I would not hold my breath waiting for the Supreme Court to address such "format"-based objections, because, IIRC, they have not been challenged in the numerous BCRA appeals.  Plaintiffs' only challenge to section 311, if I'm not mistaken, is the complaint that it impermissibly expands the old disclosure requirement to encompass "electioneering communications."  And I know that Rick has no problem with that anendment.
----- Original Message -----
From: Rick Hasen
To: election-law
Sent: Thursday, November 13, 2003 6:31 PM
Subject: Is BCRA's Stand By Your Ad provision constitutional?

There has been a great deal of press coverage recently of the provision of BCRA requiring candidates for federal office to take responsibility for their television and radio ads. (For my earlier coverage see: here; here; and here.)

Here is the provision in question: (from BCRA section 311(d)):

    ‘‘(1) COMMUNICATIONS BY CANDIDATES OR AUTHORIZED PERSONS.
    —
    ‘‘(A) BY RADIO.—Any communication described in paragraph (1) or (2) of subsection (a) which is transmitted through radio shall include, in addition to the requirements of that paragraph, an audio statement by the candidate that identifies the candidate and states that the candidate has approved the communication.
    ‘‘(B) BY TELEVISION.—Any communication described in paragraph (1) or (2) of subsection (a) which is transmitted through television shall include, in addition to the requirements of that paragraph, a statement that identifies the candidate and states that the candidate has approved the communication. Such statement—
    ‘‘(i) shall be conveyed by—
    ‘‘(I) an unobscured, full-screen view of the candidate making the statement, or
    ‘‘(II) the candidate in voice-over, accompanied by a clearly identifiable photographic or similar image of the candidate; and
    ‘‘(ii) shall also appear in writing at the end of the communication in a clearly readable manner with a reasonable degree of color contrast between the background and the printed statement, for a period of at least 4 seconds."

Section 305 of the BCRA also denies the lowest advertising rates to those candidates who mention other candidates and fail to include the "stand by your ad" provision.

These provisions cannot be intended as merely disclosure provisions, because they specify that the candidate must do the disclosure himself or herself. (But see note 50 in the government's BCRA Supreme Court brief: "Like the other disclosure requirements that BCRA imposes with respect to electioneering communications, BCRA § 311 furthers the government’s interest in ensuring an informed electorate." So far as I can tell, the McCain defendants don't devote any attention to this issue at all.)

As sponsors and others have admitted, the purpose is to curb "negative" advertising. Assuming that Fred Wertheimer is right that one cannot have a more pinpointed law for this purpose (because there is the question of who is going to define "negative advertising), can these sections of BCRA be upheld? Even putting aside overbreadth problems, I'm dubious. There are cases (described in Chapter 11 of the Lowenstein and Hasen casebook) holding that false campaign speech may sometimes be regulated (some courts require proof that the statement is also defamatory). But these provisions of BCRA don't purport to regulate false speech, only negative speech.

Certainly this law cannot be defended as a content neutral provision. Is the state's interest in insuring civility in debates enough to save the law? It might be relevant that negative campaigning in the United States is as old as the Republic itself. 
-- 
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
http://electionlawblog.org
    

-- 
Professor Rick Hasen
Loyola Law School
919 South Albany Street
Los Angeles, CA  90015-0019
(213)736-1466 - voice
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org