I do not disagree that BCRA's objectives have received the sort of
definition that you have in mind, Marty, but it is also true that the
objectives you disclaim were frequently and fervently cited on the floors of
the House and Senate by those who passed the bill and attempted to explain
their purposes in doing so. Example: Cong. Davis: "By passing the
Shays-Meehan bill, we will even the playing field." Feb. 12, 2002, H. 262.
And another, Congressman Shays Himself: his proposed law contributes to "a
level playing field". March 19, 2001, H 439. And Senator Boxer: " We are
all supposed to be equal. We are all supposed to have free speech. Why
should anyone of us have more free speech than another?" March 19, 2001, S
2444.
Likewise, there was much discussion of the significance of limiting issue
ads as a means of limiting negative campaigning. Example: Senator Snowe, in
defending the 30/60 day restrictions, stressed that issue ads "have an
attack component. Obviously, they are also designed to influence the
outcome of a campaign because they are negative ads, and, in fact, the
interest groups in this last election cycle ran the most negative ads".
March 19, 2001, S. 2458. Then there is the Wyden amendment, passed by the
Senate and included in the final bill, that would condition the availability
of the lowest unit rate on candidates' compliance with a requirement that
they accept responsibility for ads that make any reference to another
candidate. The Senator stated his purpose as one of attempting to "slow the
growth of negative political commercials that are corroding the faith of
individuals in the political process." February 22, 2001, at S 2692.
Senator Levin agreed that the "soft money loophole" constituted "one of the
major sources for the horrendous amount of negative attack ads which are
inflicted upon our constituents". S 2694 (same day). Senator Kennedy agreed
that issue ads have become "the weapon of choice in the escalating war of
negative campaigning". March 26, 2001, S 2888.
These are some of many comments of this kind, and I note them only because
the legislative history does not support the suggestion that these
concerns--negative politics and leveling the playing field--werenot among
the objectives of BCRA. I did not offer cites also on the goal of getting
money out of politics, partly because I am not sure what the phrase is meant
to refer to. But if it is meant to suggest that some believed that too much
money was spent on politics, I could offer a host of citations on this
concern--and hence objective in passing the law--as well.
I can fully agree that there are other arguments available to those wishing
to make the case for the law. But they are not the only arguments made, nor
are they the arguments that many legislators thought the most persuasive.
-----Original Message-----
From: Marty Lederman
To: election-law@majordomo.lls.edu
Cc: mickey kaus
Sent: 12/27/2003 7:19 AM
Subject: But People Are Still Running Expensive/Negative Political Ads!
The most commonly heard complaint about BCRA is that it is "ineffective"
because wealthy individuals (e.g., Soros) and noncorporate organizations
can continue to run expensive advertisements. As we've discussed
endlessly, this "criticism," of course, misunderstands BCRA's
objectives, which do not include "getting money out of politics,"
"equalizing the debate/playing field," or "stopping negative
advertising."
I raise this once again only because Mickey Kaus has a nice couple of
short blubs about his on his blog over at Slate:
http://slate.msn.com/id/2093002/ <http://slate.msn.com/id/2093002/>
(see the posts from Friday at 2:15 a.m. and 5:50 p.m.).
Kaus asks, btw, the following question:
"If Ickes[' Media Fund] runs an ad Dean doesn't like, and Dean then
gives a public press conference where he says 'That ad isn't very
helpful to us,' and Ickes pulls the ad, is that illegal 'coordination'
between Dean and an 'independent' group? If it isn't, how much more
'coordination' do you need? If it is, aren't you in effect muzzling an
actual presidential candidate's actual speech on a highly-relevant
issue?"
Please permit me to hazard a brief response:
1. This whole hypo is a real stretch, no? Can one really imagine a
candidate saying at a public press conference "That ad isn't very
helpful to us"? (If the ad is backfiring, one can imagine a candidate
repudiating it; but not complaining that it isn't "helpful.") Or Harold
Ickes taking his cues from Howard Dean?
2. Coordinated ads aren't outright illegal (so long as we're not
talking about ads broadcast by unions or corporations using treasury
funds). They're merely subject to contribution limits.
3. A fully "coordinated" pulling of an ad would not be regulated at
all.
4. The interesting question would be, if Media Fund thereafter ran an
alternative ad based on Dean's statement -- e.g., an ad that eliminated
the features that Dean deemed "unhelpful" -- would that alternative ad
be deemed "coordinated"? The answer to that question is, how shall I
put it? -- fact-dependent. Was the expenditure made after a "wink or
nod," or in "compl[iance] with a candidate's . . . suggestion"? See 124
S. Ct. at 705.
Do I have this right?