January 23, 2004

More on "Stand By Your Ad"

Before the Supreme Court decided the McConnell case, I questioned here the constitutionality of BCRA's section 311, the "stand by your ad" provision that requires a candidate to say on camera on a broadcast ad that he or she authorized the ad. In particular I questioned whether this provision by compelling speech by the candidate (as opposed to merely requiring disclosure of authorization or funding) was constitutional under the First Amendment, particularly because the purpose of the provision appeared to be to limit the amount of negative advertising, which I take to be an unconstitutional purpose.

In the McConnell case, the Court summarily upheld section 311 against constitutional challenge (it was part of Chief Justice Rehnquist's holding for the Court). Here is the entire analysis:

    FECA 318 requires that certain communications "authorized" by a candidate or his political committee clearly identify the candidate or committee or, if not so authorized, identify the payor and announce the lack of authorization. 2 U.S.C.A. 441d (main ed. and Supp.2003). BCRA 311 makes several amendments to FECA 318, among them the expansion of this identification regime to include disbursements for "electioneering communications" as defined in BCRA 201.

    The McConnell and Chamber of Commerce plaintiffs challenge BCRA 311 by simply noting that 311, along with all of the "electioneering communications" provisions of BCRA, is unconstitutional. We disagree. We think BCRA 311's inclusion of electioneering communications in the FECA 318 disclosure regime bears a sufficient relationship to the important governmental interest of "shed [ding] the light of publicity" on campaign financing. Buckley, 424 U.S., at 81, 96 S.Ct. 612. Assuming as we must that FECA 318 is valid to begin with, and that FECA 318 is valid as amended by BCRA 311's amendments other than the inclusion of electioneering communications, the challenged inclusion of electioneering communications is not itself unconstitutional. We affirm the District Court's decision upholding 311's expansion of FECA 318(a) to include disclosure of disbursements for electioneering communications.

It is not clear to me that plaintiffs in a future case could still challenge section 311 on the bases I suggest. But there is some evidence that 311--if intended to curb negative advertising---may indeed have that effect. See this report by Ryan Lizza on a New Republic campaign website (scroll down to "drive by shootings").

Posted by Rick Hasen at January 23, 2004 07:59 AM