January 23, 2004

Does the Express Advocacy/Issue Advocacy Line Retain Any Constitutional Significance?

Eight of the nine Justices in the McConnell case rejected any constitutional signficance in the line between express advocacy (advertisements which use express terms to support or oppose a candidates, as in "Vote for Smith") and issue advocacy (advertising lacking express words of advocacy but intended to, or at least likely, to affect the outcome of candidate elections, as in "Call Smith and tell her what you think about her lousy Medicare plan"). Thus, the McConnell majority wrote:

    "Thus, a plain reading of Buckley makes clear that the express advocacy limitation, in both the expenditure and the disclosure contexts, was the product of statutory interpretation rather than a constitutional command."

    "Nor are we persuaded, independent of our precedents, that the First Amendment erects a rigid barrier between express advocacy and so-called issue advocacy. That notion cannot be squared with our longstanding recognition that the presence or absence of magic words cannot meaningfully distinguish electioneering speech from a true issue ad."

    "Finally we observe that new FECA 304(f)(3)'s definition of 'electioneering communication' raises none of the vagueness concerns that drove our analysis in Buckley. The term 'electioneering communication' applies only (1) to a broadcast (2) clearly identifying a candidate for federal office, (3) aired within a specific time period, and (4) targeted to an identified audience of at least 50,000 viewers or listeners. These components are both easily understood and objectively determinable. See Grayned v. City of Rockford, 408 U.S. 104, 108-114, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). Thus, the constitutional objection that persuaded the Court in Buckley to limit FECA's reach to express advocacy is simply inapposite here."

    "This argument fails to the extent that the issue ads broadcast during the 30- and 60-day periods preceding federal primary and general elections are the functional equivalent of express advocacy. " (The court went on to reject an overbradth challenge to the separate fund requirement for corporations and unions engaging in electioneering communications in these periods before the election.)

Justice Kennedy, writing on this point for himself, Chief Justice Rehnquist and Justice Scalia, similarly rejected any meaning in the distinction:
    "The Government and the majority are right about one thing: The express- advocacy requirement, with its list of magic words, is easy to circumvent."

These three Justices then went on to uphold the new "electioneering communications" provision of BCRA as applied to disclosure rules, meaning issue advocacy may be regulated by disclosure. (The Justices rejected the extension of electioneering communications to require corporations and unions to use separate funds, not because of the line between express advocacy and issue advocacy, but because these Justices rejected the separate fund requirement applied to unions and corporations under any circumstances.)

Only Justice Thomas believed the line between express advocacy and issue advocacy retained any constitutional significance:

    "the only way to prevent the unjustified burdening of nonelection speech is to impose the regulation only on speech that is "unambiguously campaign related," id., at 81, 96 S.Ct. 612, i.e., speech using words of express advocacy. Hence, speech that uses words of express advocacy is protected under the same standard, strict scrutiny, as all other forms of speech. The only difference is that, under Buckley, there is a governmental interest supporting some regulation of those using words of express advocacy not present in other forms of speech."

Given all of this, it was somewhat surprising to see the Sixth Circuit's Anderson v. Spear case (described in my earlier post here) saying that the line continues to have constitutional significance. And opponents of campaign finance regulation have picked up on this theme. Jim Bopp, the plaintiffs' lawyer in Anderson, issued a press release last week claiming the line retained signficance. And now Bob Bauer has started sounding the same themes in this post on his website.

Bob says that the question is whether Courts are to follow Buckley or McConnell. That in fact is not the question. A lower court is to follow the most recent Supreme Court case on point, which is McConnell. As a matter of statutory interpretation, a lower court may find that a campaign finance regulation does not extend to cover issue advocacy. Or it may find that a campaign finance regulation that purports to cover issue advocacy is too vague or overbroad to be enforced. But in making that latter judgment, the lower court must keep in mind that the Court found that BCRA's "electioneering communications" provisions was neither vague nor overbroad. And---as we know from the 8-1 holding on disclosure---that determination is a solid one.

To pretend that the question remains open is to misread what McConnell clearly said on the point.

Posted by Rick Hasen at January 23, 2004 09:03 AM