November 13, 2003

Is BCRA's "Stand by Your Ad" Provision Constitutional?

There has been a great deal of press coverage recently of the provision of BCRA requiring candidates for federal office to take responsibility for their television and radio ads. (For my earlier coverage see: here; here; and here.)

Here is the provision in question: (from BCRA section 311(d)):

    ‘‘(1) COMMUNICATIONS BY CANDIDATES OR AUTHORIZED PERSONS.

    ‘‘(A) BY RADIO.—Any communication described in paragraph (1) or (2) of subsection (a) which is transmitted through radio shall include, in addition to the requirements of that paragraph, an audio statement by the candidate that identifies the candidate and states that the candidate has approved the communication.
    ‘‘(B) BY TELEVISION.—Any communication described in paragraph (1) or (2) of subsection (a) which is transmitted through television shall include, in addition to the requirements of that paragraph, a statement that identifies the candidate and states that the candidate has approved the communication. Such statement—
    ‘‘(i) shall be conveyed by—
    ‘‘(I) an unobscured, full-screen view of the candidate making the statement, or
    ‘‘(II) the candidate in voice-over, accompanied by a clearly identifiable photographic or similar image of the candidate; and
    ‘‘(ii) shall also appear in writing at the end of the communication in a clearly readable manner with a reasonable degree of color contrast between the background and the printed statement, for a period of at least 4 seconds."

Section 305 of the BCRA also denies the lowest advertising rates to those candidates who mention other candidates and fail to include the "stand by your ad" provision.

These provisions cannot be intended as merely disclosure provisions, because they specify that the candidate must do the disclosure himself or herself. (But see note 50 in the government's BCRA Supreme Court brief: "Like the other disclosure requirements that BCRA imposes with respect to electioneering communications, BCRA § 311 furthers the government’s interest in ensuring an informed electorate." So far as I can tell, the McCain defendants don't devote any attention to this issue at all.)

As sponsors and others have admitted, the purpose is to curb "negative" advertising. Assuming that Fred Wertheimer is right that one cannot have a more pinpointed law for this purpose (because there is the question of who is going to define "negative advertising), can these sections of BCRA be upheld? Even putting aside overbreadth problems, I'm dubious. There are cases (described in Chapter 11 of the Lowenstein and Hasen casebook) holding that false campaign speech may sometimes be regulated (some courts require proof that the statement is also defamatory). But these provisions of BCRA don't purport to regulate false speech, only negative speech.

Certainly this law cannot be defended as a content neutral provision. Is the state's interest in insuring civility in debates enough to save the law? It might be relevant that negative campaigning in the United States is as old as the Republic itself.

Posted by Rick Hasen at November 13, 2003 03:28 PM