December 10, 2003

Some initial analysis: the Title II issues

Title II of BCRA did two main things related to so-called "sham" issue advocacy. First, it treated broadcast advertisements made within 30 days of a primary or 60 days of a general election, featuring a candidate for federal office and targeted at the relevant electorate as subject to disclosure rules similar to rules that would apply in the case of express advocacy. In other words, one could not get around disclosure rules by saying "Call Bush and tell him what you think about his Medicare plan" rather than "Vote against Bush." Second, it held that corporations and unions, who already were barred from running express advocacy using general funds (they needed to do it through a separate political action committee subject to special rules), must comply with similar segregated fund rules for sham issue advocacy under Title II of BCRA.

The main constitutional argument against Title II was that it was substantially overbroad---it would capture too many ads really about issues, and not about candidates for office. In this amicus brief that I filed with the Court on behalf of the Center for Governmental Studies, I argued that neither the disclosure provisions nor the special corporate and union requirements (the "separate fund requirements') were overbroad. But the issue was mired in controversy over the social science data (the "Buying Time" studies) that got a great deal of attention in the lower court. (My earlier analysis of this controversy is here.

The other main concern, that emerged after oral argument, was that the Court might be considering overruling the rules that require separate PACS for corporations and unions, even as to express advocacy. That was because the votes on an earlier case on the topic as to express advocacy. Austin v. Michigan Chamber of Commerce, appeared close, and Chief Justice Rehnquist, who sided with the Austin majority, indicated at oral argument that he was reconsidering his view. That appeared to make a majority, with O'Connor, Scalia and Kennedy as Austin dissenters, and Thomas certainly in that camp as well.

The five Justice opinion (Stevens, O'Connor, Breyer, Souter, Ginsburg) is somewhat of a surprise, quickly brushing off the overbreadth argument. As to Austin, the majority appears to take the position (as I and others argued in the briefs) that the plaintiffs did not really take on the Austin rationale, and therefore the only question was whether it should be extended to cover sham issue advocacy. Justice Kennedy in dissent (speaking also for Rehnquist---who had switched sides, and Justices Scalia and Thomas) noted that O'Connor appeared to swtich sides, and argued that Austin itself should be reexamined. So this main component of the reform law was saved by Justice O'Connor's switched vote, which balanced the switch by the Chief Justice.

Here are the relevant excerpts. First, from the majority opinion (footnotes omitted and citations altered):

    We have repeatedly sustained legislation aimed at "the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas." Austin; see Beaumont; National Right to Work. Moreover, recent cases have recognized that certain restrictions on corporate electoral involvement permissibly hedge against
    "circumvention of [valid] contribution limits." Beaumont (quoting Colorado II.)

    In light of our precedents, plaintiffs do not contest that the Government has a compelling interest in regulating advertisements that expressly advocate the election or defeat of a candidate for federal office. Nor do they con-
    tend that the speech involved in so-called issue advocacy is any more core political speech than are words of express advocacy. After all, "the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office," Monitor Patriot Co. v. Roy,
    401 U. S. 265, 272 (1971), and"“[a]dvocacy of the election or defeat of candidates for federal office is no less entitled to protection under the First Amendment than the discussion of political policy generally or advocacy of the passage or defeat of legislation." Buckley, 424 U. S., at 48. Rather,
    plaintiffs argue that the justifications that adequately support the regulation of express advocacy do not apply to significant quantities of speech encompassed by the definition of electioneering communications.

    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 justifications for the
    regulation of express advocacy apply equally to ads aired during those periods if the ads are intended to influence the voters' decisions and have that effect. The precise percentage of issue ads that clearly identified a candidate and were aired during those relatively brief preelection time spans but had no electioneering purpose is a matter of dispute between the parties and among the judges on the District Court. Nevertheless, the vast majority of ads clearly had such a purpose. Annenberg Report 13-14; App. 1330–1348 (Krasno & Sorauf Expert Report); 251 F. Supp. 2d, at 573–578 (Kollar-Kotelly, J.); id., at 826-827 (Leon, J.). Moreover, whatever the precise percentage may have been in the past, in the future corporations and unions may finance genuine issue ads during those time frames by simply avoiding any specific reference to federal candidates, or in doubtful cases by paying for the ad from a segregated fund.

    We are therefore not persuaded that plaintiffs have carried their heavy burden of proving that amended FECA 316(b)(2) is overbroad. See Broadrick v. Oklahoma, 413 U. S. 601, 613 (1973). Even if we assumed that BCRA will
    inhibit some constitutionally protected corporate and union speech, that assumption would not "justify prohibiting all enforcement" of the law unless its application to protected speech is substantial, "not only in an absolute
    sense, but also relative to the scope of the law's plainly legitimate applications.” Virginia v. Hicks, 539 U. S. ___, ___ (2003) (slip op., at 5–6). Far from establishing that BCRA’s application to pure issue ads is substantial, either in an absolute sense or relative to its application to election-related advertising, the record strongly supports the contrary conclusion.

Justice Kennedy wrote: "Instead of extending Austin to suppress new and vibrant voices, I would overrule it and return our campaign finance jurisprudence to principles consistent with the First Amendment. " He also wrote: "I dissented in Austin, 494 U. S., at 695, and continue to believe that the case represents an indefensible departure from our tradition of free and robust
debate. Two of my colleagues joined the dissent, including a member of today's majority. Ibid. (O’CONNOR and SCALIA, JJ.). See also id., at 679 (SCALIA, J., dissenting)."

Posted by Rick Hasen at December 10, 2003 08:14 AM