The First Amendment and Restrictions on Issue Advocacy

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Thank you, Mr. Chairman and Members of the Subcommittee forinviting me to testify before you today. My name is Brad Smith. Byway of introduction, I am an Associate Professor

of Law at Capital University Law School in Columbus, Ohio, whereI teach, among other subjects, Election Law. Though I appear todayon my own behalf, I am also an Adjunct Scholar of the CatoInstitute. I have researched and written extensively, in bothacademic and popular journals, on the subject of campaignfinance.

Discussions of the constitutionality of campaign financeregulation must necessarily begin with a review of the SupremeCourt's landmark decision in Buckley v.Valeo, 424 U.S. 1 (1976). It is often said that Buckley equates money with speech. This is not bad aseveryday shorthand, but as shorthand, it does not do justice to thetrue holding of Buckley. What Buckley actually says is not that money is speech, butthat the expenditure of money is necessary to effective speech.Limits on monetary expenditures limit speech. Though controversialin some esoteric circles, for most people this is such common sensethat we tend not to even think of it. We would all recognize that alaw limiting newspapers to spending $1000 per year -- or even $1000per day -- would force most daily newspapers to cease publication,and that this would be an unconscionable violation of the FirstAmendment. Similarly, a law limiting television networks toexpenditures of just $1000 per day would violate the FirstAmendment by effectively shutting off speech. This is true eventhough -- in fact, especially because - newspapers and televisionstations and networks routinely editorialize on political issues;endorse candidates for office; slant news coverage to promoteissues and, implicitly, candidates viewed as important; and givecolumn space, or, in the case of television stations, air time,worth literally hundreds of thousands of dollars, to politicalparties, candidates, and issues. But even the most mundanepolitical activities, such as publishing a flyer to distribute at acounty fair; or purchasing a megaphone to use at a public rally; ortraveling somewhere to give a speech; require the expenditure ofmoney. The link between the expenditure of money and speech isunassailable. Because of this link, the Supreme Court, inBuckley, made clear that any restrictionson the expenditure of funds -- including limitations on issueadvocacy -- must be subject to the strictest judicial scrutiny forFirst Amendment violations.

In fact, Buckley v. Valeo dealt directlywith the question of regulating what are now called "issueadvocacy" advertisements. It is often forgotten that in the 1974Amendments to the Federal Elections Campaign Act, Congress soughtto limit issue ads, just as many do now. Section 608(e)(1) of the1974 FECA Amendments provided that, "[n]o person may make anyexpenditure... relative to a clearly identified candidate during acalendar year which, when added to all other expenditures made bysuch person during the year advocating the election or defeat ofsuch candidate, exceeds $1000." The Court noted that "the plaineffect of Section 608(e)(1)[limiting issue advocacy] is to prohibitall individuals, who are neither candidates nor owners ofinstitutional press facilities, from voicing their views.... Theuse of so indefinite a phrase as "relative to" a candidate fails toclearly mark the boundary between permissible and impermissiblespeech..."

Many who now clamor for regulation of issue advocacy argue thatsuch ads can and do effect elections, sometimes even calling them"thinly veiled campaign ads." But the Supreme Court was notoblivious to this possibility when it decided the Buckley case. In fact, the court specifically rejectedthat argument, writing:

  • "[T]he distinction between discussion of issues and candidatesand advocacy of election or defeat of candidates may often dissolvein practical application. Candidates, especially incumbents, areintimately tied to public issues involving legislative proposalsand governmental actions. Not only do candidates campaign on thebasis of their positions on various public issues, but campaignsthemselves generate issues of public interest...." Buckley v. Valeo, 424 U.S. at 42.

Thus, even though issue ads might affect elections, this aloneis not sufficient to justify the chilling effect that regulation ofissue ads has on political speech.

Furthermore, the Court went on to note that regulation of issueads, and specifically the meaning of the phrase, "relative to... aclearly identified candidate" could not be saved by looking atother manifestations of the speaker's intent in an effort todetermine if the ads were "really" campaign ads. This would donothing to take away the chilling effect of such regulation, andmight even make the burden of the regulation worse. In the Court'swords:

  • "Whether words intended and designed to fall short ofinvitation would miss that mark is a question of both intent and ofeffect. No speaker, in such circumstances, safely could assume thatanything he might say upon the general subject would not bemisunderstood by some... In short, the supposedly clear-cutdistinction between discussion, laudation, general advocacy, andsolicitation puts the speaker in these circumstances wholly at themercy of the varied understanding of his hearers and consequentlyof whatever inference may be drawn as to his intent andmeaning.

"Such a distinction offers no security for free discussion. Inthese conditions it blankets with uncertainty whatever may be said.It compels the speaker to hedge and trim." Buckleyv. Valeo, 424 U.S. at 43, quoting Thomas v.Collins, 323 U.S. 516 (1945).

Thus, the Court concluded, "[C]onstitutional deficiencies can beavoided only by reading Sec. 608(e)(1) as limited to communicationsthat include explicit words of advocacy of election or defeat of acandidate." The Court explained that, "[t]his construction wouldrestrict the application of Sec. 608(e)(1) to communicationscontaining express words of advocacy of election or defeat, such as'vote for,' 'elect,' 'support,' 'cast your ballot for,' 'Smith forCongress,' 'vote against,' 'defeat,' [and] 'reject.'" Buckley, 424 U.S. at 43-44 and fn. 52. The distinctivefeature of the issue ads that Congress now seeks is regulate isspecifically that they do not include such words of"express advocacy."

In the years since Buckley was decided,both the Supreme Court and lower courts have, time and time again,reaffirmed the reasoning and holding of that decision as itpertains to express advocacy. See e.g. FEC v. Massachusetts Citizens for Life, Inc. 479 U.S.238 (1986); Maine Right to Life Committee v.FEC, 98 F.

d 1 (1st Cir. 1996); Faucher v.FEC, 928 F.2d 468 (1st Cir.), cert. den.502 U.S. 820 (1991); FEC v. Long Island Tax ReformImmediately Committee, 616 F.2d 45 (2nd Cir.1980)(en banc); FEC v. Survival EducationFund, No. 89 Civ. 0347, 1994 WL 9658 (S.D.N.Y. 1994),aff'd in part and rev'd in part on other grounds, 65 F.3d285 (2nd Cir. 1995); FEC v. ChristianAction Network, Inc., 92 F. 3d 1178 (4th Cir.1996); FEC v. Furgatch, 807 F.2d 857(9th Cir.), cert. den. 484 U.S. 850 (1987);FEC v. Colorado Republican Federal CampaignCommittee, 839 F. Supp. 1448 (D. Co.); rev'd on othergrounds, 59 F.3d 1015 (10th Cir.), vacated onother grounds, 116 S. Ct. 2309 (1996); FEC v.National Organization for Women, 713 F. Supp. 428 (D.D.C.1989); FEC v. American Federation of State,County, and Municipal Employees, 471 F. Supp. 315 (D.D.C.1979). No federal appellate court has ever suggested thatthis analysis is incorrect as a matter of constitutionallaw.

In fact, so clear is the constitutional precedent in thisarea that the United States Court of Appeals for the Fourth Circuitrecently took the extraordinary step of ordering the FEC to pay thelegal fees incurred by the Christian Action Network (C.A.N.) indefending itself from an FEC lawsuit. The FEC had attempted tofine the C.A.N. for issue advertising, arguing that the C.A.N.'sads constituted campaign ads even though they did not include wordsof "express advocacy." FEC v. Christian ActionNetwork, Inc. 1997 U.S. App. Lexis 6477 (April 7, 1997). Ina stinging rebuke to the FEC, the court concluded, "In the face ofthe unequivocal Supreme Court and other authority discussed, anargument such as that made by the FEC in this case, that 'no wordsof express advocacy are necessary to expressly advocate theelection of a candidate,' simply cannot be advanced in goodfaith... much less with 'substantial justification.'...The FirstAmendment forbids the regulation of our political speech under suchindeterminate standards." Express words of advocacy, the courtemphasized, "are the constitutional minima." Id.

Constitutionality of Current Proposals

With this Constitutional background in mind, let us look at someof the bills proposed in this Congress to regulate "issueadvocacy."

The Shays-Meehan bill, originally H.R. 493, now H.R. 1776 and1777, attempts to limit expenditures for:

  • "a communication... that refers to a clearly identifiedcandidate, that a reasonable person would understand as advocatingthe election or defeat of the candidate, and that is made within 30days before the date of a primary election ... or 60 days before ageneral election ...

    ...[or] that a reasonable person would understand as advocatingthe election or defeat of the candidate, and that is made beforethe date that is 30 days before the date of a primary election, or60 days before a general election, and that is made for the purposeof advocating the election or defeat of a candidate, as shown byone or more factors such as a statement or action by the personmaking the communication, or the use by the person making thecommunication of polling, demographic, or other similar datarelating to a candidate's campaign or election." HR 493, Section251(b).

Is this any more clear than the standard struck downin Buckley, whichlimited "expenditures relative to a clearly identifiedcandidate...advocating the election or defeat of such candidate,"?If anything, it is even more vague and intrusive, attempting, as itdoes, to ascertain the motives of the speaker through a governmentinquiry and interpretation of past statements and actions.This would have a double chilling effect on speech, for not onlythe speech at issue, but past speech, would become relevant to thedetermination of a violation. As we have seen in Buckley, the Supreme Court specifically held that sucha vague standard as "relative to...a candidate" cannot be madeConstitutional by reference to the subjective interpretation, bygovernment officials, of various other actions and statements bythe speaker: "No speaker, in such circumstances, safely couldassume that anything he might say upon the general subject wouldnot be misunderstood by some... the supposedly clear-cutdistinction... puts the speaker at the mercy of the variedunderstanding of his hearers and consequently of whatever inferencemay be drawn as to his intent and meaning." Buckley, 424 U.S. at 43.

We can also compare HR 1776 and 1777 to the FEC rule struck downand sanctioned in Christian Action Network.That rule attempted to limit an expenditure which:

  • "[w]hen taken as a whole and with limited reference to externalevents, such as the proximity to the election, could only beinterpreted by a reasonable person as containing advocacy of theelection or defeat of one or more clearly identified candidate(s)because (1) the electoral portion of the communication isunmistakable, unambiguous, and suggestive of only one meaning; and(2) reasonable minds could not differ as to whether it encouragesactions to elect or defeat one or more clearly identifiedcandidate(s) or encourages some other kind of action." 11 C.F.R.Section 100.22(b).

The FEC rule, struck down by the courts, at least required thatthe communication be "unambiguous" and "unmistakable," and that"reasonable minds could not differ," all standards more stringentthan that included in the Shays-Meehan proposal. Yet, the Rule wasnot only struck down, but the court found the FEC's position soobviously unconstitutional that it took the extraordinary step ofordering the FEC to pay the Christian Action Network's legalfees.

To take another example of language attempting to limit issueads, HR 600 defines express advocacy as "when a communication is,taken as a whole and with limited reference to external events, anexpression of support for or opposition to a specific candidate, toa specific group of candidates, or to candidates of a particularparty." HR 600, Sec. 201. Comparing this to the standards struckdown in Buckley and Christian Action Network, can anyone doubt that thislanguage is also too vague to pass constitutional muster? Like HR1776-1777, it even lacks the certainty of the unconstitutional FECrule.

What the regulators seem to have lost sight of is thefact that politics is about the discussion of issues, andcandidates' positions on issues. It is the heart of the FirstAmendment for individuals and groups to discuss issues andcriticize officials. It is all but impossible to talkpolitics for long in this country without mentioning theindividuals holding or seeking office. Or, as the Court said inBuckley, "Candidates, especiallyincumbents, are intimately tied to public issues..." We will nothave a free society for long if government officials are empoweredto prohibit some from speaking on the rather bizarre ground thattheir speech consists of "campaign endorsements or attacks," whiledetermining that others can speak because their speech "genuinelydebate[s] issues," to use the words of two prominent reformerswriting recently in the Washington Post. It is precisely that typeof distinction and government censorship which the First Amendmentaims to prevent.

Disclosure of Issue Advocacy

If it is clear that issue ads - or, we might say, politicaldiscussion - cannot be banned consistent with the First Amendment,some have suggested that at a minimum it could be forciblydisclosed. This is the approach taken by HR 2183, the so-called"freshman" proposal, and in the so-called "Blue Dog" proposalfloated this summer. Unfortunately for the sponsors of these bills,but fortunately for the political and speech rights of the Americanpeople, this approach also runs directly afoul of recent SupremeCourt precedent.

In McIntyre v. Ohio ElectionsCommission, 514 U.S. 334 (1995), the Supreme Court affirmedthat individuals have a constitutional right to engage in anonymouspolitical discussion and advertising. The reason should be soobvious as not to need explication: people may feel chilled, if notprohibited, in criticizing their government if they feel that thatgovernment may use its power to retaliate against them.McIntyre ties together two long-standingstrands of First Amendment jurisprudence: the right to anonymousleafleting, see Talley v.California, 362 U.S. 60 (1960)(the right to anonymouspublication is necessary because "exposure of the names ofprinters, writers, and distributors would lessen the circulation ofliterature critical of the government"); and the right oforganizations to protect members from disclosure that could lead topolitical retaliation and harassment, see NAACP v. Alabama, 357 U.S. 449 (1958).

If disclosure of spending on issue ads, i.e. politicaldiscourse, were required, how would it be enforced? It couldonly be enforced by requiring citizen groups to respond to thedemands of federal officials for information regarding the times,places, amount, and manner of speech. And it would have thesame chilling effect on speech that led the Supreme Court to strikedown limits on issue advocacy in Buckley. For in order to determine if acommunication was intended to "influence public opinion" (thestandard used in H.R. 2183) and therefore subject to disclosure, itwould be necessary for federal officials to examine thecommunication under much the same vague standards as those that HR1776 and 1777 would use to ban all issue ads. After all, mostspeech is, to some extent, intended to influence public opinion.The ensuing chilling effect on speech makes such forced disclosureunconstitutional. Nor can this approach get around McIntyre, NAACP v. Alabama, andBuckley by being called "lobbyingdisclosure." The effort is disingenuous on its face -communications to the public have never been considered lobbying,and because they aren't directed to the legislators, it isdifficult to see how they could be. Furthermore, the disclosurewould apply to speech that mentions candidates who are notincumbents. One can hardly lobby someone who does not holdoffice.

It is, of course, frustrating for candidates to findtheir record and views attacked in ways that may seem distortingand unfair. Similarly, it may seem unfair to be locked in apolitical race only to have large expenditures made attacking one'spositions on an issue. But this is the nature of politics. And theFirst Amendment exists to prevent the government from attempting todetermine "legitimate" from "non-legitimate" commentary on publicissues. As one commentator has noted, no nation has ever succeededin creating a "benign political police."

Soft Money

A topic much related to "issue advocacy" these days is that of"soft money," that is, unrestricted contributions made to politicalparties for party building activities. Whenever the subject of"soft money" comes up, I begin by noting that an effort wasmade to ban soft money in the 1974 FECA Amendments, and the 1976elections were conducted without soft money. This created ashortage of cash for state and local parties, which caused a sharpdecline in traditional political activity such as rallies, printingof bumper stickers, buttons, and yard signs, and get-out-the-votedrives. Thus, FECA was specifically amended in 1979 to allow forsoft money contributions to the parties. We need to rememberthis when people talk about banning or limiting soft money. Whatalleged evil are people after? Do we want to deprive local partiesof funds to conduct voter registration drives or get-out-the-votedrives? Stop local parties from printing slate cards, linking aparty's candidates together? Or stop them from printing bumperstickers and yard signs, or providing transportation to the pollsfor elderly voters, or holding rallies? I think not.

I suggest that the current emphasis on banning orsharply curtailing soft money comes entirely from the extensive useof soft money to fund party sponsored issue advocacy campaigns inthe 1996 elections. However, political parties have as much rightas other entities to run issue ads. SeeFEC v. Colorado Republican Federal CampaignCommittee, 116 S. Ct. 2309 (1996)(holding that politicalparties may engage in independent expenditures). If party-sponsoredissue ads are protected by the Constitution, what point is there inlimiting soft money, unless we do want to restrict funding forget-out-the-vote drives and the like? May I suggest that there isnone.

Furthermore, to the extent that candidates dislike issue ads andindependent expenditures because they cause the candidate to losecontrol of the campaign message, efforts to prevent party sponsoredissue ads by drying up the supply of soft money will make thesituation worse. Why? Because people who now give to the parties totake their message public will simply resort to running independentissue ad campaigns. These independent campaigns are, I think, morelikely to be negative or distorting than party run ads.

But it really doesn't matter, because efforts to ban orlimit soft money contributions for issue ads are probablyunconstitutional in any event. As Colorado Republican Federal Campaign Committee makesclear, political parties have the same rights in the politicalarena as other groups. Thus, like other groups, they have a rightto raise unrestricted funds for the purpose of airing issue ads.Limiting soft-money, then, if it is constitutional at all, which Idoubt, will only dry up funds for activities that are arguably lessspeech related, such as the voter registration drives, slate cards,and other activities that almost every rational observersupports.

If you want to limit issue ads, the best, and perhaps onlyConstitutional approach, is to raise the limits on directcontributions to candidates. It is since those restrictions wereput on 23 years ago - and never adjusted even for inflation - thatgroups have turned increasingly to independent issue ads topersuade the public of their views. Raise the limits on directcontributions, and some donors may again decide that giving moneyto the candidate is a more effective means of spreading theirpolitical views. Or, to put it another way, perhaps we shouldreturn to the system of free elections under which this countrygrew into the world's greatest democracy, fought and won two worldwars, passed the great civil rights legislation of the 1950s and1960s, and generally prospered.

Public Opinion

Finally, I would like to say a brief word about public opinionon this issue. Polls are frequently released allegedly showingbroad public support for such things as restrictions on soft moneyand issue advertising. Of course, as the members of thissubcommittee well know, one purpose of the Constitution is toprotect our fundamental rights from the ebbs and flows of publicpassion. But leaving that aside, I think that such polls areterribly flawed, and I would warn this Congress that if it were toactually pass the restrictions on issue advocacy underconsideration, it would unleash a firestorm of hostile publicreaction.

Consider, for example, one highly publicized poll released thissummer by the reform group the Center for Responsive Politics.Supposedly, 70% of respondents favored limiting how much acandidate could spend on his or her own campaign; 75% favoredlimiting soft money; 71% favored limiting TV ads; 85% favoredlimiting out-of-district contributions; and 61% favored banningPACs. Yet, oddly enough, in that same poll, 47% favored liftingall restrictions on campaign contributions. Clearly, then,the public is somewhat confused, as the total of those favoringmore restrictions and those favoring the abolition of allrestrictions substantially tops 100%. You cannot lift allrestrictions on contributions and still have restrictions. For morethan 25 years groups such as Common Cause, the Center forResponsive Politics, the League of Women Voters, Public Citizen,ACORN and PIRG, along with huge foundations such as the SchumanFoundation, the Pew Charitable Trust, and the Joyce Foundation,have spent millions, virtually unopposed, attempting to convincethe public of the merits of such regulation. Their efforts have hadvirtually unanimous support in the institutional press, which wouldnot have its speech limited by the proposed reforms. Given this,the fact roughly half the public favors scrapping all regulation ofthe system is truly remarkable.

In fact, when the heated rhetoric is stripped away, the publicremains strongly in favor of free political speech. For example,the aforementioned Center for Responsive Politics poll suggeststhat a substantial majority of Americans would like to ban PACcontributions. Similarly, a recent poll by the independent TarranceGroup found that roughly 60% favor a PAC ban. But when thelong-vilified term "PAC" was dropped, 64% believe that "a group ofpeople who have a common purpose or belief can pool smallcontributions to help elect political candidates who share theirviews," with just 29% disagreeing. That, of course, is thedefinition of a PAC. Why this difference? The Tarrance Poll gives aclue. Fewer than half of respondents considered themselves membersof a "special interest." Yet, when asked about their personalmemberships and affiliations, 75% stated that they were members ofgroups, such as unions, single-issue groups such as the NRA orHandgun Control, Inc., or broad ideological or membership groups ofthe type that engage in issue ads and political expenditures.

When the public understands what is at stake -- i.e., that it istheir voices, and the voices of their neighbors, that will besilenced, their perception, I suggest to you, changes dramaticallyand radically. Just last week I was on a Florida radio phone-inshow along with the local Common Cause representative. I describedthe threat to the First Amendment posed by campaign financeregulation, and the gentleman from Common Cause stated that it wasnot their aim to reduce political speech. It would be perfectlyalright, he said, for individuals and groups to spend whatever theylike on advertisements discussing candidates and issues, but theyshould not be able to make contributions to candidates. This man, alocal representative for the reform movement, honestly believedthat HR 1776 and 1777, being promoted by his organization, wouldnot limit issue advertising, to the point that he suggested thatthis was why restrictions on contributions to candidates were notobjectionable. I pointed out that limiting independentadvertisements discussing candidates and issues was exactly whatthe reformers, including Common Cause, are seeking to do in thisCongress, through bills such as HR 1776 and 1777 and its Senatecounterpart, the "McCain-Feingold" bill. When callers to the showdiscovered that these efforts would limit advertisements andscorecards describing candidates views on issues, they becamelivid. When we talk about limiting issue ads, we are not talkingabout silencing the other guy: we are talking about silencingourselves, and the public doesn't like it.

In short, the notion being spread by reformers, of somebroad public support for these types of regulatory proposals, is abig con job. If the types of proposals being discussedhere today pass, when the public understands what has happenedthere will be a serious voter reaction. And one reason is becauseAmericans do treasure their First Amendment rights, and they dobelieve that their representatives should take seriously their oathto uphold the Constitution. In fact, in the Tarrance Group pollI've mentioned, 86% of respondents said that they would be lesslikely to vote a member of Congress or Senator who had voted forcampaign finance reforms which were unconstitutional. So the publicis hardly interested in reform at any price. And, as I have showntoday, efforts to ban or curtail issue advocacy, such asthose found in HR 1776-1777 and many other bills now before theHouse, are quite clearly unconstitutional.

Thank you for this opportunity to speak to you today.

Bradley A. Smith

Subcommittee on the Constitution
Committee on the Judiciary
United States House of Representatives