THE GAG ORDER Campaign Finance Bill Almost - but Not Quite - Avoids Free Speech Flaws
Sonia Fois is a partner and Jeff Richman is an associate in Arnold & Porter's legislative and public policy practice group. They specialize in legislative advocacy, election law, and ethics compliance at the state and federal levels.
A critical component of the campaign finance reform bill just past by the Senate prevents "soft money" from flowing to fund issue ads broadcast soon before federal elections. Proponents of this measure argue that independent advocacy groups run "shadow campaigns" that circumvent federal action laws by using what amounts to essentially unregulated money- including significant amounts from corporations and unions.
The ban on such advertisements-known as the Snowe-Jeffords provisions-is unconstitutionally overbroad. But a little-publicized amendment offered by Sen. Arlen Specter (R.-Pa.) and adopted by the Senate in the waning days of the debate is a pivotal step toward remedying constitutional defects.
In seeking to put an end to what critics call "sham" issue ads, the campaign finance reform package sponsored by Sens. John McCain (R-Ariz.) and Russell Feingold (D-Wis.) prohibits national political parties from raising or spending any soft money, prohibits state parties from spending soft money in connection with federal elections, and severely restricts certain advocacy group ads. This latter restriction-Snowe-Jeffords-would prohibit, within 60 days of a general election and 30 days of a primary, any corporate or labor union-funded broadcast communications that so much as mentions the name of a federal candidate. This blackout period applies even if the ad is focused solely on an issue that is actively before Congress.
By way of background, since 1947, Congress has prohibited corporations and unions from contributing anything of value to a federal candidate or from making expenditures (including those for speech) that are connected to federal elections. The ban on campaign-related expenditures extends to nonprofit corporations that receive funding from corporations, unions, or their own business activities. As the Supreme Court stated in United States v. United Automobile Workers (1957), the rationale is to "affirm the importance of preventing both the actual corruption threatened by large financial contributions and the eroding of public confidence in the electoral process through the appearance of corruption."
Congress has expressed particular historical concern with the campaign-related use of corporate treasury funds and union dues. According to theUnited Automobile Workers decision, "The evil at which Congress has struck. . . is the use of corporation or union funds to influence the public at large to vote for a particular candidate or a particular party."
CORRUPTION vs. SPEECH
Snowe-Jeffords supporters have perilously hung their hats on the "preventing corruption" rationale. But the threat or appearance of corruption must be assessed in the context of other fundamental principles that have been established unequivocally by the Court.
Notwithstanding the bar on their election-related activities, corporate and union speech regarding issues of public concern have received exacting First Amendment protection. To protect this expression right, the Supreme Court in Federal Election Commission v. Massachusetts Citizens for Life (1986) narrowly construed the Federal Election Campaign Act's prohibition of corporate and union expenditures "in connection with" a federal election to cover only corporate or union speech that "expressly advocate[s] the election or defeat of a clearly identified candidate"-so-called express advocacy.
Following Massachusetts Citizens, the Federal Election Commission interpreted the meaning of express advocacy, defining the term somewhat broadly so that it covers more than communications that merely contain "magic words" similar to the examples provided by the Supreme Court in its seminal 1976 opinion of Buckley v. Valeo (e.g., "vote for," "support," "defeat," or "reject"). The FEC's definition (in part) includes communications that "have no other reasonable meaning than to encourage actions to elect or defeat the candidate in question."
While lower federal courts have come to varying conclusions on the constitutionality of this definition, the Massachusetts Citizens decision made clear that Congress must make every effort to distinguish protected issue speech from impermissible electioneering. This requirement of drawing clear lines is rooted in bedrock First Amendment principles. "Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms," the Court stated in NAACP v. Button (1963). That is, a statute may be void on its face if it is overbroad.
Or, as the Court stated in Thornhill v. Alabama (1940), a statute cannot stand if it "does not aim specifically at evils within the allowable area of State control but, on the contrary, sweeps within its ambit other activities that in ordinary circumstances constitute an exercise of freedom of speech."
Based on these precedents, a leading advocate of the constitutionality of Snowe-Jeffords-the Brennan Center for Justice at New York University School of Law-echoes the FEC's view that "as a legal matter, Congress is not foreclosed from adopting a definition of 'electioneering' or 'express advocacy' that goes beyond the 'magic word' test. . . as long as vagueness and overbreadth concerns are met."
The Brennan Center, however, concludes that Snowe-Jeffords is neither vague nor overbroad. We disagree. To be sure, there is nothing vague about the lines drawn by Snowe-Jeffords. But it is fatally overbroad because the mere broadcast of a candidate's name is close proximity to an election is not a sufficient ground to turn protected issue speech into express advocacy or even electioneering.
Indeed, inMassachusetts Citizens, Justice William Brennan Jr. himself noted that certain forms of issue advocacy" by their nature raise the names of certain politicians." To illustrate the potential overbreadth of Snowe-Jeffords, a corporation or union could not broadcast garden-variety issue ads during the blackout period, such as a television spot that urges voters to call a member of Congress and urge him to vote a certain way on a specific bill. Indeed, the FEC has noted that even its definition of express advocacy does not reach such ads.
Snowe-Jeffords also is problematic because corporations and unions may have the most compelling need to speak out on the issues during the blackout period. Congress frequently produces a substantial amount of its most important pieces of legislation at the end of a Congress in the months prior to an election. And political campaigns, by their nature, focus the public's attention on issues-the very public issues on which corporations or unions have a First Amendment right to speak out. As Buckley states, "Candidates, especially incumbents, are intimately tied to public issues involving legislative proposals and government actions. Not only do candidates campaign on the basis of various issues, but campaigns themselves generate issues of public interest."
It is precisely for these reasons that Buckley held that government restrictions must "clearly mark the boundary between permissible and impermissible speech." Thus, to pass constitutional muster, Congress must establish lines that will effectively distinguish permissible issue advocacy from election-related advocacy.
While an amendment to strike Snowe-Jeffords in its entirety was soundly defeated, some senators have recognized that there may be a more constitutionally sound avenue to accomplishing its purpose. Congress could adopt a more surgical "fix" and define electioneering in a way that precludes the most abusive forms of issue advocacy without trampling on speech clearly protected by the First Amendment.
Along these lines, the Senate adopted the Specter amendment (which Specter based on the FEC's definition of express advocacy). The amendment seeks to define the difference between legitimate issue ads and electioneering. Like Snowe-Jeffords, it provides that an electioneering communication does not necessarily have to "expressly advocate a vote for or against a candidate." Unlike Snowe-Jeffords, however, the Specter amendment does not provide a blackout period. Rather, to constitute electioneering, the communication must be "suggestive of no plausible meaning other than an exhortation to vote for or against a specific candidate." Thus, merely mentioning a candidate's name in close proximity to an election would not, in and of itself, meet this test.
The Specter amendment, however, is only a step in the right direction. By its terms, the Specter amendment would not come into effect unless the courts render a final decision that Snowe-Jeffords is unconstitutional. The Specter amendment thus could be referred to as a "springing" amendment. Further, if it applies at all, the Specter amendment's provisions would apply in lieu of the Snowe-Jeffords requirements, instead of in addition to them. Lacking the clear lines established by Snowe-Jeffords, however, the Specter amendment itself might be held unconstitutionally vague.
Thus, the best course for the House of Representatives when it considers the campaign finance bill is to take the "spring" out of the Specter amendment, and adopt it in tandem with Snowe-Jeffords. Corporations and unions have a compelling interest in ensuring their continued right to speak freely on issues of public importance. A provision that combines Snowe-Jeffords and the Specter amendment would more clearly define impermissible electioneering, while permitting corporations and unions to continue to be heard on the issues.
