E.  Bipartisan Campaign Reform Act

Tests First Amendment Limits 

     

      The Bipartisan Campaign Reform Act of 2002 (BCRA), Congress’s latest attempt to restrict unregulated political contributions to political parties and to limit negative campaign ads, provoked a major First Amendment confrontation in 2002.  The law is a comprehensive update of the Federal Election Campaign Act of 1971 (FECA), which created the Federal Election Commission and imposed limits on both campaign contributions and expenditures “to promote fair practices in the conduct of election campaigns for Federal political offices.” 

      FECA was considered inadequate by the BCRA’s proponents, however, largely because of court decisions that limited its scope.  Accordingly, Congress adopted the BCRA to plug the “loopholes” in the prior law.  Among other things, the BCRA bans “soft money” contributions to political parties.  It also prohibits corporations, labor unions, and other independent groups from airing radio or television ads that mention a candidate within 30 days of a primary and 60 days of a general election.  The purpose of this provision is to restrict what BCRA’s supporters consider sham issue ads designed to attack or promote a candidate.  The law, which became effective the day after the November 2002 elections, was challenged immediately in court.

 

Background

      It is an understatement to say that campaign finance reform in America has satisfied no one.  Although Congress attempted to restrict both campaign contributions and expenditures through passage of the FECA in 1971, the U.S. Supreme Court held that the First Amendment imposed significant limits on the government’s ability to control the political process. 

      In Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), the Court sharply limited the government’s ability to regulate expenditures for political advocacy, explaining that such measures “represent substantial rather than merely theoretical restraints on the quantity and diversity of political speech.”  Id. at 19.  The decision left only part of the congressional scheme in place, allowing the FEC to regulate contributions to federal candidates and to require disclosures only for money spent on “express advocacy” for such candidates.  Id. at 80-82.

      The outcome in Buckley has been criticized sharply by participants on both sides of the campaign regulation debate, both on and off the bench.  The focus of much criticism has been the claim that Buckley equates money – spending on political campaigns – with speech.  As Justice John Paul Stevens wrote most pointedly in a recent campaign regulation case: “Money is property; it is not speech.”  Nixon v. Shrink Missouri PAC, 528 U.S. 377, 398 (2000) (Stevens, J., concurring). 

      Even justices who are more skeptical of the proposition that government can impose campaign restrictions in a manner that comports with the First Amendment have expressed dissatisfaction with the Buckley analysis.  See id. at 405-07 (Kennedy, J., dissenting) (Court should reconsider Buckley but should not “abandon the rigors of our traditional First Amendment structure”); id. at 410-12 (Thomas, J., dissenting) (Buckley is flawed and has led to “enfeebled constitutional protection” for campaign speech).  Yet even justices who are more comfortable with campaign regulation acknowledge that “a decision to contribute money to a campaign is a matter of First Amendment concern – not because money is speech (it is not); but because it enables speech.”  Id. at 400 (Breyer, J., concurring) (emphasis in original).

      Accordingly, whatever position one takes in the ongoing debate about Buckley, the added restrictions on political contributions and political advertising in the BCRA are fraught with constitutional implications.  The law was challenged by Sen. Mitch McConnell (R-Ky.) along with 83 other individuals and organizations, including the Republican National Committee, California Democratic Party, AFL-CIO, ACLU, National Association of Broadcasters, U.S. Chamber of Commerce, and National Rifle Association. 

      The case was argued on two separate days in December 2002 before a three-judge district court panel in Washington, D.C.  From the perspective of mass media and the First Amendment, the most troubling aspect of the BCRA is the restriction on issue advertisements that refer to candidates in “blackout” periods 60 days before elections and 30 days before primaries. 

 

Issue Advertising and the First Amendment

      The BCRA was adopted, in part, to provide what its proponents described as “a reasonable solution to the problem of unlimited and undisclosed advertising that fails to qualify as ‘express advocacy’ under federal election law.”  H. Rep. No. 107-131, Pt. 1, at 50 (2001).  The problem, in this view, is simply that too much unregulated speech is taking place, and its solution is to extend more federal control over political expression.  As BCRA co-sponsor Rep. Martin T.  Meehan (D-Mass.) explained, the law was fashioned to ensure that “campaign ads masquerading as issue discussion are subject to the same laws that ... campaign ads should be.”  148 Cong. Rec. H260 (daily ed. Feb. 12, 2002) (emphasis added). 

      “Since these ads stop just short of using the magic words [that Buckley held could be regulated], their sponsors are not subject to full public disclosure, the ads need carry no disclaimer, and they may be paid for with unlimited dollars from any source.”  H. Rep. No. 107-131, at 50.  Accordingly, the solution was to limit speech during political campaigns, or, as the BCRA’s supporters explain, to impose “modest burdens” on groups and individuals seeking to engage in issue advocacy.  Id. at 51.

      By framing the restrictions on “electioneering communication” as necessary to close a “loophole” created by Buckley, the BCRA confronts directly the central premise of that case.  The Buckley Court reasoned that “virtually every means of communicating ideas in today’s mass society requires the expenditure of money,” id. at 19, and “[t]he First Amendment’s protection against governmental abridgement of free expression cannot properly be made to depend on a person’s financial ability to engage in public discussion.”  Id. at 49. 

      Accordingly, the Court held that references to candidates in issue advertisements do not convert the ads from speech protected by the First Amendment to the equivalent of money, and therefore regulable under campaign reform laws.  Rather, the Court explained that express advocacy and ordinary political discussion often are intertwined:

 

[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 government actions.  Not only do candidates campaign on the basis of their positions on various public issues, but campaigns themselves generate issues of public interest.  Id. at 42. 

 

      Although proponents of campaign regulation argue that intervention is needed to prevent one-sided domination of political dialogue, there is evidence to indicate that citizens with political views falling on opposite ends of the ideological spectrum and from vastly different socio-economic backgrounds engage in issue advocacy.  The Annenberg Public Policy Center reported that independent organizations of all stripes use the broadcast media to express their views on public policy issues, including health care, the environment, education, social security, international affairs, national defense, abortion, taxation, and gun control.  Erika Falk, “Ad content,” Issue Advertising in the 1999-2000 Election Cycle 21, at www.appcpenn.org/political/issueads/1999-2000issueadvocacy.pdf (Feb. 1, 2002).  In fact, by the 1999-2000 election cycle, experts estimated that 130 groups aired more than 1,000 issue advertisements.  Kathleen Hall Jamieson, “Introduction,” Issue Advertising in the 1999-2000 Election Cycle 1, at  www.appcpenn.org/political/issueads/1999-2000issueadvocacy.pdf (Feb. 1, 2002).

 

BCRA and Mills v. Alabama

      Placing limits on such core political speech faces a high constitutional hurdle, as the Supreme Court has found in various contexts.  In Mills v. Alabama, 384 U.S. 214 (1966), for example, the Court voided the conviction of a newspaper editor under a state Corrupt Practices Act for publishing an editorial on election day urging readers to vote a certain way on a referendum.  Under the same theory as that underlying the BCRA, the state law at issue in Mills was quite modest: It prohibited “any electioneering or ... solicit[ing] any votes ... in support of or in opposition to any proposition that is being voted on on the day on which the election affecting such candidates or propositions is being held.”  Mills, 384 U.S. at 216 (emphasis added). 

      The Alabama Supreme Court had upheld the law, finding it to be “within the field of reasonableness” under the state’s police power.  But the U.S. Supreme Court disagreed, finding that the election-day ban “silences [speech] at a time when it can be most effective.”  Id. at 219.  Like the speech targeted by the BCRA’s electioneering communication blackout, the editorial at issue in Mills was focused on a campaign issue, but it specifically named (and attacked) a public official in making its point.  Id. at 215 n.1.  Nevertheless, the Court held that “no test of reasonableness can save a state law from invalidation as a violation of the First Amendment when that law makes it a crime for a newspaper editor to do no more than urge people to vote one way or another in a publicly held election.”  Id. at 220. 

      One difference between the facts presented in Mills and the BCRA restrictions is that the federal statute exempts communications appearing in a news story, commentary, editorial, or candidate debate and forum from its definition of “electioneering communication.”  Without question, the BCRA’s constitutional hurdles would be higher (if not insurmountable) if it captured both paid issue ads and press commentary, as did Alabama’s general Corrupt Practices Act. 

      But while the BCRA is less restrictive than the Alabama law due to its exemption for press commentary, it is also more burdensome for the types of speech it restricts.  The BCRA restricts political speech not just on election day, but for 30 and 60 days before votes are cast.  Such a broad restriction on core political speech about campaign issues necessarily presents a significant First Amendment problem.  See, e.g., McIntyre v. Ohio Elections Commission, 514 U.S. 334, 346-47 (1995).

 

BCRA and Burson v. Freeman

      It also is instructive to compare the campaign speech restrictions imposed by the BCRA with the limited geographic limitations on election day campaigning upheld in Burson v. Freeman, 504 U.S. 191 (1992).  In one of the few cases in which political speech restrictions were upheld following strict-scrutiny review, the Court held 5 to 3 that a Tennessee ban on campaign materials within 100 feet of polling places was consistent with the First Amendment.  In doing so, however, the Court rejected the state’s argument that the regulation was merely a content-neutral time, place, or manner regulation.  Id. at 197. 

      Moreover, the Court upheld the “campaign free zone” only because it was: (1) supported by a long tradition of limiting campaigning at polling places;  (2) applied only on election day; and (3) imposed only a “minor geographic limitation.”  Id. at 210-11.  With regard to the scope of the restriction, the majority conceded: “At some measurable distance from the polls, of course, governmental regulation of vote solicitation could effectively become an impermissible burden akin to the statute struck down in Mills v. Alabama.”  Id. at 210 (citation omitted).

      In this case, the BCRA’s restrictions on political speech are far broader than the geographic limits of the Tennessee law upheld in Burson.  The limitation on “electioneering communication” is not focused on “campaign material” as was the state law, but applies to issue advertisements that refer to clearly identified candidates.  Nor is the restriction on electioneering communication so “limited” as the Tennessee ban, either geographically or temporally.  As the Supreme Court noted in analyzing the Tennessee law, it takes approximately 15 seconds to walk 75 feet, and it was not unreasonable for the state to require “that these last 15 seconds before its citizens enter the polling place should be their own, as free from interference as possible.”  Id. 

      By contrast, the BCRA imposes blanket restrictions on affected speech for the critical months of the election process before the primary and general elections.  For the states with primaries in September, including New York, Florida, and Wisconsin, the statute implicates issue advocacy from August through election day.  For the many states that hold their primaries in May and June, three of the five months preceding the election would trigger the “electioneering communication” restrictions.

      The district court is expected to issue an opinion in McConnell v. FEC in 2003.  The law provides for direct appeal to the Supreme Court.

 

--Robert Corn-Revere

 

The author filed an amicus brief in McConnell v. FEC on behalf of The Media Institute.