I do not believe that I misread McConnell--I believe that Rick has misread
my comments.
In the first instance, I had not read Jim Bopp's press release, and indeed
was unaware of it. In no way did I prepare my comment as part of a movement
of sorts on the part of some group Rick refers to as "opponents of campaign
finance regulation." In fact, I rather dislike that moniker: I may have
disagreements with the shape and thrust of BCRA, but there are forms of
regulation, including disclosure, public financing and free-time
requirements, that I very much support, and have supported for years. I
greatly admired Paul Wellstone's amendment to free states to experiment with
federal election public financing programs--only to watch the sponsors of
BCRA successfully call and vote for its defeat. I have qualms about
campaign finance regulation envisioned as an escalating series of police
measures: qualms about fairness, efficacy and effect. This position does not
qualify me as an "opponent of campaign finance regulation"--but rather as a
critic of this kind of campaign finance regulation.
Second, my post was intended to stress the disingenuity of McConnell, which
claims to follow Buckley when it represents a significant departure from
that case in key respects. Rick cites, for example, McConnell's insistence
that its view of "express advocacy" follows from a "plain reading" of
Buckley. Really? This "plain reading" certainly eluded the lower courts for
many years, and over that time--I will not cite examples here, but will upon
request--the Supreme Court did nothing to correct their confusion. I add
also that Rick and others have noted that McConnell leaves in serious
question the contours of the famous line drawn by the Buckley Court between
"contributions" and "expenditures". And, moreover, the McConnell Court
approaches the matter of "deference" to the legislature very differently, it
is fair to say, than the Buckley Court did.
Yet all the while, the McConnell Court claims that it is following Buckley.
So the Court has created the conditions for a wide array of judgments about
how McConnell should be applied to cases in the future. Will McConnell be
applied in the guise that it merely confirms the meaning of Buckley--hence
conservatively? Or will the manner in which it reshaped Buckley--or more to
the point, eclipsed it--be emphasized? The Anderson v. Spears Court seemed
to go out of its way to stress the traditional features of Buckley,
including the significance of the distinction between contributions and
expenditures. It also could have read the "express advocacy" analysis
somewhat differently, and upheld the 500 foot limitation on a McConnell-type
rationale, but it chose not to do so.
I do mean to take anything away from the success of BCRA supporters in
moving the statute through Congress, then the Courts. But McConnell, while
practically a success for the reform movement, is a shaky piece of
craftmanship (at best) and leaves the constitutional law in this area, never
particularly lucid, consistent, or transparent, something of a mess. This
was my point and my purpose. Jim Bopp can speak for himself.
-----Original Message-----
From: Rick Hasen
To: election-law
Sent: 1/23/2004 9:07 AM
Subject: the express advocacy/issue advocacy line after McConnell
Does the Express Advocacy/Issue Advocacy Line Retain Any Constitutional
Significance?
Eight of the nine Justices in the McConnell case rejected any
constitutional signficance in the line between express advocacy
(advertisements which use express terms to support or oppose a
candidates, as in "Vote for Smith") and issue advocacy (advertising
lacking express words of advocacy but intended to, or at least likely,
to affect the outcome of candidate elections, as in "Call Smith and tell
her what you think about her lousy Medicare plan"). Thus, the McConnell
majority wrote:
"Thus, a plain reading of Buckley makes clear that the express
advocacy limitation, in both the expenditure and the disclosure
contexts, was the product of statutory interpretation rather than a
constitutional command."
"Nor are we persuaded, independent of our precedents, that the
First Amendment erects a rigid barrier between express advocacy and
so-called issue advocacy. That notion cannot be squared with our
longstanding recognition that the presence or absence of magic words
cannot meaningfully distinguish electioneering speech from a true issue
ad."
"Finally we observe that new FECA ¤ 304(f)(3)'s definition of
'electioneering communication' raises none of the vagueness concerns
that drove our analysis in Buckley. The term 'electioneering
communication' applies only (1) to a broadcast (2) clearly identifying a
candidate for federal office, (3) aired within a specific time period,
and (4) targeted to an identified audience of at least 50,000 viewers or
listeners. These components are both easily understood and objectively
determinable. See Grayned v. City of Rockford, 408 U.S. 104, 108-114, 92
S.Ct. 2294, 33 L.Ed.2d 222 (1972). Thus, the constitutional objection
that persuaded the Court in Buckley to limit FECA's reach to express
advocacy is simply inapposite here."
"This argument fails to the extent that the issue ads broadcast
during the 30- and 60-day periods preceding federal primary and general
elections are the functional equivalent of express advocacy. " (The
court went on to reject an overbradth challenge to the separate fund
requirement for corporations and unions engaging in electioneering
communications in these periods before the election.)
Justice Kennedy, writing on this point for himself, Chief Justice
Rehnquist and Justice Scalia, similarly rejected any meaning in the
distinction:
"The Government and the majority are right about one thing: The
express- advocacy requirement, with its list of magic words, is easy to
circumvent."
These three Justices then went on to uphold the new "electioneering
communications" provision of BCRA as applied to disclosure rules,
meaning issue advocacy may be regulated by disclosure. (The Justices
rejected the extension of electioneering communications to require
corporations and unions to use separate funds, not because of the line
between express advocacy and issue advocacy, but because these Justices
rejected the separate fund requirement applied to unions and
corporations under any circumstances.)
Only Justice Thomas believed the line between express advocacy and issue
advocacy retained any constitutional significance:
"the only way to prevent the unjustified burdening of
nonelection speech is to impose the regulation only on speech that is
"unambiguously campaign related," id., at 81, 96 S.Ct. 612, i.e., speech
using words of express advocacy. Hence, speech that uses words of
express advocacy is protected under the same standard, strict scrutiny,
as all other forms of speech. The only difference is that, under
Buckley, there is a governmental interest supporting some regulation of
those using words of express advocacy not present in other forms of
speech."
Given all of this, it was somewhat surprising to see the Sixth Circuit's
Anderson v. Spear case (described in my earlier post here
<http://electionlawblog.org/archives/000485.html> ) saying that the line
continues to have constitutional significance. And opponents of campaign
finance regulation have picked up on this theme. Jim Bopp, the
plaintiffs' lawyer in Anderson, issued a press release last week
claiming the line retained signficance. And now Bob Bauer has started
sounding the same themes in this
<http://www.moresoftmoneyhardlaw.com/other/index.htm#012304> post on
his website.
Bob says that the question is whether Courts are to follow Buckley or
McConnell. That in fact is not the question. A lower court is to follow
the most recent Supreme Court case on point, which is McConnell. As a
matter of statutory interpretation, a lower court may find that a
campaign finance regulation does not extend to cover issue advocacy. Or
it may find that a campaign finance regulation that purports to cover
issue advocacy is too vague or overbroad to be enforced. But in making
that latter judgment, the lower court must keep in mind that the Court
found that BCRA's "electioneering communications" provisions was neither
vague nor overbroad. And---as we know from the 8-1 holding on
disclosure---that determination is a solid one.
To pretend that the question remains open is to misread what McConnell
clearly said on the point.