The First Amendment and Restrictions on Issue Advocacy

September 18, 1997 • Testimony
By Bradley A. Smith

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

of Law at Capital University Law School in Columbus, Ohio, where I teach, among other subjects, Election Law. Though I appear today on my own behalf, I am also an Adjunct Scholar of the Cato Institute. I have researched and written extensively, in both academic and popular journals, on the subject of campaign finance.

Discussions of the constitutionality of campaign finance regulation must necessarily begin with a review of the Supreme Court’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 as everyday shorthand, but as shorthand, it does not do justice to the true holding of Buckley. What Buckley actually says is not that money is speech, but that the expenditure of money is necessary to effective speech. Limits on monetary expenditures limit speech. Though controversial in some esoteric circles, for most people this is such common sense that we tend not to even think of it. We would all recognize that a law limiting newspapers to spending $1000 per year — or even $1000 per day — would force most daily newspapers to cease publication, and that this would be an unconscionable violation of the First Amendment. Similarly, a law limiting television networks to expenditures of just $1000 per day would violate the First Amendment by effectively shutting off speech. This is true even though — in fact, especially because — newspapers and television stations and networks routinely editorialize on political issues; endorse candidates for office; slant news coverage to promote issues and, implicitly, candidates viewed as important; and give column space, or, in the case of television stations, air time, worth literally hundreds of thousands of dollars, to political parties, candidates, and issues. But even the most mundane political activities, such as publishing a flyer to distribute at a county fair; or purchasing a megaphone to use at a public rally; or traveling somewhere to give a speech; require the expenditure of money. The link between the expenditure of money and speech is unassailable. Because of this link, the Supreme Court, in Buckley, made clear that any restrictions on the expenditure of funds — including limitations on issue advocacy — must be subject to the strictest judicial scrutiny for First Amendment violations.

In fact, Buckley v. Valeo dealt directly with the question of regulating what are now called “issue advocacy” advertisements. It is often forgotten that in the 1974 Amendments to the Federal Elections Campaign Act, Congress sought to limit issue ads, just as many do now. Section 608(e)(1) of the 1974 FECA Amendments provided that, “[n]o person may make any expenditure… relative to a clearly identified candidate during a calendar year which, when added to all other expenditures made by such person during the year advocating the election or defeat of such candidate, exceeds $1000.” The Court noted that “the plain effect of Section 608(e)(1)[limiting issue advocacy] is to prohibit all individuals, who are neither candidates nor owners of institutional press facilities, from voicing their views.… The use of so indefinite a phrase as “relative to” a candidate fails to clearly mark the boundary between permissible and impermissible speech…”

Many who now clamor for regulation of issue advocacy argue that such ads can and do effect elections, sometimes even calling them “thinly veiled campaign ads.” But the Supreme Court was not oblivious to this possibility when it decided the Buckley case. In fact, the court specifically rejected that argument, writing:

  • “[T]he distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical application. Candidates, especially incumbents, are intimately tied to public issues involving legislative proposals and governmental actions. Not only do candidates campaign on the basis of their positions on various public issues, but campaigns themselves generate issues of public interest.…” Buckley v. Valeo, 424 U.S. at 42.

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

Furthermore, the Court went on to note that regulation of issue ads, and specifically the meaning of the phrase, “relative to… a clearly identified candidate” could not be saved by looking at other manifestations of the speaker’s intent in an effort to determine if the ads were “really” campaign ads. This would do nothing to take away the chilling effect of such regulation, and might even make the burden of the regulation worse. In the Court’s words:

  • “Whether words intended and designed to fall short of invitation would miss that mark is a question of both intent and of effect. No speaker, in such circumstances, safely could assume that anything he might say upon the general subject would not be misunderstood by some… In short, the supposedly clear‐​cut distinction between discussion, laudation, general advocacy, and solicitation puts the speaker in these circumstances wholly at the mercy of the varied understanding of his hearers and consequently of whatever inference may be drawn as to his intent and meaning.

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

Thus, the Court concluded, “[C]onstitutional deficiencies can be avoided only by reading Sec. 608(e)(1) as limited to communications that include explicit words of advocacy of election or defeat of a candidate.” The Court explained that, “[t]his construction would restrict the application of Sec. 608(e)(1) to communications containing express words of advocacy of election or defeat, such as ‘vote for,’ ‘elect,’ ‘support,’ ‘cast your ballot for,’ ‘Smith for Congress,’ ‘vote against,’ ‘defeat,’ [and] ‘reject.’ ” Buckley, 424 U.S. at 43–44 and fn. 52. The distinctive feature of the issue ads that Congress now seeks is regulate is specifically 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 it pertains 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 Reform Immediately Committee, 616 F.2d 45 (2nd Cir. 1980)(en banc); FEC v. Survival Education Fund, 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.3d 285 (2nd Cir. 1995); FEC v. Christian Action 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 Campaign Committee, 839 F. Supp. 1448 (D. Co.); rev’d on other grounds, 59 F.3d 1015 (10th Cir.), vacated on other 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 that this analysis is incorrect as a matter of constitutional law.

In fact, so clear is the constitutional precedent in this area that the United States Court of Appeals for the Fourth Circuit recently took the extraordinary step of ordering the FEC to pay the legal fees incurred by the Christian Action Network (C.A.N.) in defending itself from an FEC lawsuit. The FEC had attempted to fine the C.A.N. for issue advertising, arguing that the C.A.N.‘s ads constituted campaign ads even though they did not include words of “express advocacy.” FEC v. Christian Action Network, Inc. 1997 U.S. App. Lexis 6477 (April 7, 1997). In a stinging rebuke to the FEC, the court concluded, “In the face of the unequivocal Supreme Court and other authority discussed, an argument such as that made by the FEC in this case, that ‘no words of express advocacy are necessary to expressly advocate the election of a candidate,’ simply cannot be advanced in good faith… much less with ‘substantial justification.’…The First Amendment forbids the regulation of our political speech under such indeterminate standards.” Express words of advocacy, the court emphasized, “are the constitutional minima.” Id.

Constitutionality of Current Proposals

With this Constitutional background in mind, let us look at some of the bills proposed in this Congress to regulate “issue advocacy.”

The Shays‐​Meehan bill, originally H.R. 493, now H.R. 1776 and 1777, attempts to limit expenditures for:

  • “a communication… that refers to a clearly identified candidate, that a reasonable person would understand as advocating the election or defeat of the candidate, and that is made within 30 days before the date of a primary election … or 60 days before a general election …

    …[or] that a reasonable person would understand as advocating the election or defeat of the candidate, and that is made before the date that is 30 days before the date of a primary election, or 60 days before a general election, and that is made for the purpose of advocating the election or defeat of a candidate, as shown by one or more factors such as a statement or action by the person making the communication, or the use by the person making the communication of polling, demographic, or other similar data relating to a candidate’s campaign or election.” HR 493, Section 251(b).

Is this any more clear than the standard struck down in Buckley, which limited “expenditures relative to a clearly identified candidate…advocating the election or defeat of such candidate,”? If anything, it is even more vague and intrusive, attempting, as it does, to ascertain the motives of the speaker through a government inquiry and interpretation of past statements and actions. This would have a double chilling effect on speech, for not only the speech at issue, but past speech, would become relevant to the determination of a violation. As we have seen in Buckley, the Supreme Court specifically held that such a vague standard as “relative to…a candidate” cannot be made Constitutional by reference to the subjective interpretation, by government officials, of various other actions and statements by the speaker: “No speaker, in such circumstances, safely could assume that anything he might say upon the general subject would not be misunderstood by some… the supposedly clear‐​cut distinction… puts the speaker at the mercy of the varied understanding of his hearers and consequently of whatever inference may 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 down and sanctioned in Christian Action Network. That rule attempted to limit an expenditure which:

  • “[w]hen taken as a whole and with limited reference to external events, such as the proximity to the election, could only be interpreted by a reasonable person as containing advocacy of the election or defeat of one or more clearly identified candidate(s) because (1) the electoral portion of the communication is unmistakable, unambiguous, and suggestive of only one meaning; and (2) reasonable minds could not differ as to whether it encourages actions to elect or defeat one or more clearly identified candidate(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 that the communication be “unambiguous” and “unmistakable,” and that “reasonable minds could not differ,” all standards more stringent than that included in the Shays‐​Meehan proposal. Yet, the Rule was not only struck down, but the court found the FEC’s position so obviously unconstitutional that it took the extraordinary step of ordering the FEC to pay the Christian Action Network’s legal fees.

To take another example of language attempting to limit issue ads, HR 600 defines express advocacy as “when a communication is, taken as a whole and with limited reference to external events, an expression of support for or opposition to a specific candidate, to a specific group of candidates, or to candidates of a particular party.” HR 600, Sec. 201. Comparing this to the standards struck down in Buckley and Christian Action Network, can anyone doubt that this language is also too vague to pass constitutional muster? Like HR 1776–1777, it even lacks the certainty of the unconstitutional FEC rule.

What the regulators seem to have lost sight of is the fact that politics is about the discussion of issues, and candidates’ positions on issues. It is the heart of the First Amendment for individuals and groups to discuss issues and criticize officials. It is all but impossible to talk politics for long in this country without mentioning the individuals holding or seeking office. Or, as the Court said in Buckley, “Candidates, especially incumbents, are intimately tied to public issues…” We will not have a free society for long if government officials are empowered to prohibit some from speaking on the rather bizarre ground that their speech consists of “campaign endorsements or attacks,” while determining that others can speak because their speech “genuinely debate[s] issues,” to use the words of two prominent reformers writing recently in the Washington Post. It is precisely that type of distinction and government censorship which the First Amendment aims to prevent.

Disclosure of Issue Advocacy

If it is clear that issue ads — or, we might say, political discussion — cannot be banned consistent with the First Amendment, some have suggested that at a minimum it could be forcibly disclosed. This is the approach taken by HR 2183, the so‐​called “freshman” proposal, and in the so‐​called “Blue Dog” proposal floated this summer. Unfortunately for the sponsors of these bills, but fortunately for the political and speech rights of the American people, this approach also runs directly afoul of recent Supreme Court precedent.

In McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995), the Supreme Court affirmed that individuals have a constitutional right to engage in anonymous political discussion and advertising. The reason should be so obvious as not to need explication: people may feel chilled, if not prohibited, in criticizing their government if they feel that that government may use its power to retaliate against them. McIntyre ties together two long‐​standing strands of First Amendment jurisprudence: the right to anonymous leafleting, see Talley v. California, 362 U.S. 60 (1960)(the right to anonymous publication is necessary because “exposure of the names of printers, writers, and distributors would lessen the circulation of literature critical of the government”); and the right of organizations to protect members from disclosure that could lead to political retaliation and harassment, see NAACP v. Alabama, 357 U.S. 449 (1958).

If disclosure of spending on issue ads, i.e. political discourse, were required, how would it be enforced? It could only be enforced by requiring citizen groups to respond to the demands of federal officials for information regarding the times, places, amount, and manner of speech. And it would have the same chilling effect on speech that led the Supreme Court to strike down limits on issue advocacy in Buckley. For in order to determine if a communication was intended to “influence public opinion” (the standard used in H.R. 2183) and therefore subject to disclosure, it would be necessary for federal officials to examine the communication under much the same vague standards as those that HR 1776 and 1777 would use to ban all issue ads. After all, most speech is, to some extent, intended to influence public opinion. The ensuing chilling effect on speech makes such forced disclosure unconstitutional. Nor can this approach get around McIntyre, NAACP v. Alabama, and Buckley by being called “lobbying disclosure.” 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 is difficult to see how they could be. Furthermore, the disclosure would apply to speech that mentions candidates who are not incumbents. One can hardly lobby someone who does not hold office.

It is, of course, frustrating for candidates to find their record and views attacked in ways that may seem distorting and unfair. Similarly, it may seem unfair to be locked in a political race only to have large expenditures made attacking one’s positions on an issue. But this is the nature of politics. And the First Amendment exists to prevent the government from attempting to determine “legitimate” from “non‐​legitimate” commentary on public issues. As one commentator has noted, no nation has ever succeeded in 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 political parties for party building activities. Whenever the subject of “soft money” comes up, I begin by noting that an effort was made to ban soft money in the 1974 FECA Amendments, and the 1976 elections were conducted without soft money. This created a shortage of cash for state and local parties, which caused a sharp decline in traditional political activity such as rallies, printing of bumper stickers, buttons, and yard signs, and get‐​out‐​the‐​vote drives. Thus, FECA was specifically amended in 1979 to allow for soft money contributions to the parties. We need to remember this when people talk about banning or limiting soft money. What alleged evil are people after? Do we want to deprive local parties of funds to conduct voter registration drives or get‐​out‐​the‐​vote drives? Stop local parties from printing slate cards, linking a party’s candidates together? Or stop them from printing bumper stickers and yard signs, or providing transportation to the polls for elderly voters, or holding rallies? I think not.

I suggest that the current emphasis on banning or sharply curtailing soft money comes entirely from the extensive use of soft money to fund party sponsored issue advocacy campaigns in the 1996 elections. However, political parties have as much right as other entities to run issue ads. See FEC v. Colorado Republican Federal Campaign Committee, 116 S. Ct. 2309 (1996)(holding that political parties may engage in independent expenditures). If party‐​sponsored issue ads are protected by the Constitution, what point is there in limiting soft money, unless we do want to restrict funding for get‐​out‐​the‐​vote drives and the like? May I suggest that there is none.

Furthermore, to the extent that candidates dislike issue ads and independent expenditures because they cause the candidate to lose control of the campaign message, efforts to prevent party sponsored issue ads by drying up the supply of soft money will make the situation worse. Why? Because people who now give to the parties to take their message public will simply resort to running independent issue ad campaigns. These independent campaigns are, I think, more likely to be negative or distorting than party run ads.

But it really doesn’t matter, because efforts to ban or limit soft money contributions for issue ads are probably unconstitutional in any event. As Colorado Republican Federal Campaign Committee makes clear, political parties have the same rights in the political arena as other groups. Thus, like other groups, they have a right to raise unrestricted funds for the purpose of airing issue ads. Limiting soft‐​money, then, if it is constitutional at all, which I doubt, will only dry up funds for activities that are arguably less speech related, such as the voter registration drives, slate cards, and other activities that almost every rational observer supports.

If you want to limit issue ads, the best, and perhaps only Constitutional approach, is to raise the limits on direct contributions to candidates. It is since those restrictions were put on 23 years ago — and never adjusted even for inflation — that groups have turned increasingly to independent issue ads to persuade the public of their views. Raise the limits on direct contributions, and some donors may again decide that giving money to the candidate is a more effective means of spreading their political views. Or, to put it another way, perhaps we should return to the system of free elections under which this country grew into the world’s greatest democracy, fought and won two world wars, passed the great civil rights legislation of the 1950s and 1960s, and generally prospered.

Public Opinion

Finally, I would like to say a brief word about public opinion on this issue. Polls are frequently released allegedly showing broad public support for such things as restrictions on soft money and issue advertising. Of course, as the members of this subcommittee well know, one purpose of the Constitution is to protect our fundamental rights from the ebbs and flows of public passion. But leaving that aside, I think that such polls are terribly flawed, and I would warn this Congress that if it were to actually pass the restrictions on issue advocacy under consideration, it would unleash a firestorm of hostile public reaction.

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

In fact, when the heated rhetoric is stripped away, the public remains strongly in favor of free political speech. For example, the aforementioned Center for Responsive Politics poll suggests that a substantial majority of Americans would like to ban PAC contributions. Similarly, a recent poll by the independent Tarrance Group found that roughly 60% favor a PAC ban. But when the long‐​vilified term “PAC” was dropped, 64% believe that “a group of people who have a common purpose or belief can pool small contributions to help elect political candidates who share their views,” with just 29% disagreeing. That, of course, is the definition of a PAC. Why this difference? The Tarrance Poll gives a clue. Fewer than half of respondents considered themselves members of a “special interest.” Yet, when asked about their personal memberships and affiliations, 75% stated that they were members of groups, such as unions, single‐​issue groups such as the NRA or Handgun Control, Inc., or broad ideological or membership groups of the type that engage in issue ads and political expenditures.

When the public understands what is at stake — i.e., that it is their voices, and the voices of their neighbors, that will be silenced, their perception, I suggest to you, changes dramatically and radically. Just last week I was on a Florida radio phone‐​in show along with the local Common Cause representative. I described the threat to the First Amendment posed by campaign finance regulation, and the gentleman from Common Cause stated that it was not their aim to reduce political speech. It would be perfectly alright, he said, for individuals and groups to spend whatever they like on advertisements discussing candidates and issues, but they should not be able to make contributions to candidates. This man, a local representative for the reform movement, honestly believed that HR 1776 and 1777, being promoted by his organization, would not limit issue advertising, to the point that he suggested that this was why restrictions on contributions to candidates were not objectionable. I pointed out that limiting independent advertisements discussing candidates and issues was exactly what the reformers, including Common Cause, are seeking to do in this Congress, through bills such as HR 1776 and 1777 and its Senate counterpart, the “McCain‐​Feingold” bill. When callers to the show discovered that these efforts would limit advertisements and scorecards describing candidates views on issues, they became livid. When we talk about limiting issue ads, we are not talking about silencing the other guy: we are talking about silencing ourselves, and the public doesn’t like it.

In short, the notion being spread by reformers, of some broad public support for these types of regulatory proposals, is a big con job. If the types of proposals being discussed here today pass, when the public understands what has happened there will be a serious voter reaction. And one reason is because Americans do treasure their First Amendment rights, and they do believe that their representatives should take seriously their oath to uphold the Constitution. In fact, in the Tarrance Group poll I’ve mentioned, 86% of respondents said that they would be less likely to vote a member of Congress or Senator who had voted for campaign finance reforms which were unconstitutional. So the public is hardly interested in reform at any price. And, as I have shown today, efforts to ban or curtail issue advocacy, such as those found in HR 1776–1777 and many other bills now before the House, are quite clearly unconstitutional.

Thank you for this opportunity to speak to you today.

About the Author
Bradley A. Smith