Subcommittee Hearing on "The First Amendment and Restrictions on Issue
Advocacy"
Thursday, September 18, 1997
2226 Rayburn House Office Building
10:00 a.m.
Mr. Chairman, I am honored to have been invited to testify before the Subcommittee about an issue that lies at the heart of efforts to invigorate our democracy.
By way of introduction, the Brennan Center for Justice at New York University School of Law is a nonpartisan institution devoted to scholarship, discourse, and action on issues of justice that were central to the jurisprudential legacy of Justice William J. Brennan Jr. We are guided by principles that were important to Justice Brennan -- a willingness to ask the hard questions and to reexamine old doctrine, an insistence on developing constitutional norms that make pragmatic sense, and an ardent insistence on protecting liberty. Justice Brennan did more than any Justice in the history of our nation to protect civil liberties -- and particularly freedom of speech. It is no accident that we chose as our first Legal Director, Burt Neuborne, one of the most renowned advocates of civil liberties, who rose to prominence as the longtime National Legal Director of the American Civil Liberties Union, or that several other lawyers on our staff have spent their careers fighting for civil liberties in many contexts, including at the ACLU. Given our namesake and our backgrounds, we would like to think that we approach all issues, and particularly issues relating to the financing of campaigns, with a special sensitivity to concerns about free speech.
Any attempt to stanch the flow of money into politics raises difficult constitutional questions. None are thornier than the issues that are before this Subcommittee today -- defining the permissible line dividing speech that is regulable from speech that is not. On the one hand, we have a duty to protect our democracy from corrosive influences, to encourage good candidates to run, to enhance the competitiveness of elections, and to fulfill the constitutional mandate of one-person-one-vote. On the other hand, in accomplishing any of these goals, we need to be sure that we do not trammel our cherished freedom of speech, that we do not choke off the funds necessary to communicate a message to a wide audience, and that we allow multiple voices to flourish and clash.
These interests are not easy to balance. But the Supreme Court has provided some guidance. Let me start with a principle that is undisputable: Under current law, Congress is constitutionally permitted to draw some line distinguishing two types of speech. On one side of the line is some category of speech directed at advocating the election or defeat of clearly identified candidates. In the interest of trying to find a neutral phrase that carries no baggage, let's call it "electioneering," without defining for the moment exactly what falls on that side of the line. Maybe it is "magic words" (such as "vote for" or "vote against") maybe it is something broader. But we all agree that some line is permissible.
If speech falls on the "electioneering" side of the line, we all agree, three consequences follow:
1. Disclosure: Congress may require the speaker -- whether a PAC or a corporation or a party or an individual or a candidate -- to disclose the sources of the money and the nature of the expenditures in support of the speech.
2. Source restrictions: Congress may absolutely bar certain speakers from spending money on electioneering. Congress may preclude corporations and unions from electioneering (or, more accurately, from spending money to engage in electioneering). Congress may limit participation to individuals and PACs. Congress may prohibit foreigners from electioneering.
3. Fundraising restrictions: Congress may restrict the sources from which speakers can raise their money -- to individuals, for example -- and Congress can limit the size of the contributions to a collective fund.
We may not all like these rules, but this is black letter constitutional law about which none of us can disagree.
Do these restrictions infringe on speech and privacy rights? Of course they do. Wherever one draws the "electioneering" line, there are certain words that corporations and unions are banned from uttering. There are certain messages that can be funded only by individuals or by groups that amass individual contributions in discrete amounts. These regulations necessarily reduce the sheer amount of money that can be spent on certain messages. And these regulations require speakers to reveal certain information such as how much they spent and who supported their message.
Even though these regulations infringe on speech, they are undisputably constitutional. Since 1907, corporations have been barred from electioneering, since 1947 those restrictions have been extended to labor unions, and since 1974, the law has restricted the size of contributions that can be made to speech funded by a group. The Supreme Court has clearly and emphatically upheld a these restrictions. The corporate restrictions were reaffirmed as recently as 1990, in Austin v. Michigan Chamber of Commerce. In that case, the Supreme Court upheld a law banning corporations from engaging in electioneering. Significantly, the Court rebuffed a challenge launched by a Michigan corporation that was identical to Wisconsin Manufacturers & Commerce, which is testifying here today.
So, to reiterate, our point of departure is a constitutional regime that permits a legislature to draw a line between electioneering and other speech and that permits us to regulate electioneering in a way that does infringe somewhat on speech and privacy rights. The question before this Subcommittee the question that is presented in the Wisconsin cases that have received much attention today is where exactly the line is between electioneering and other speech.
A lot rides on what qualifies as "electioneering." If the government defines the concept too broadly, it could end up restricting speech on issues of public importance that happens to have an influence on elections -- a result that is antithetical to the First Amendment. If the law defines it too narrowly, we may as well not bother having campaign finance laws, because all players could readily find a way to influence elections in a direct way, making a mockery of the law.
That is where we find ourselves today. We are now in a world where everyone has gotten accustomed to thinking that it is not electioneering unless the speaker utters a magic word -- like vote for," "vote against," "elect," or "defeat." So all players -- corporations, unions, foreigners, and parties -- engage in an open strategy to influence elections by running or paying for ads that look, smell, waddle, and quack like campaign ads, but are just missing the magic words. They use money from prohibited sources, they raise it in prohibited amounts, and they close their books to public scrutiny. In many cases, their stated goal is to influence the election. They crow about their success in influencing the election, and yet they claim the First Amendment protects their right to engage in any speech, even with that clearly prescribable motive.
The Wisconsin cases perfectly illustrate the point. (Here, in the interest of full disclosure, I should mention that I am representing the candidates who are challenging WMC's spending in court.) WMC, a corporate group funded entirely by corporate money, set out to spend hundreds of thousands of dollars on advertising directed at delivering the State Legislature to Republican control. WMC targeted five Democratic candidates who were considered vulnerable. It set out to swamp the airwaves with ads, almost all of which were visciously negative. The ads were to run in the last week or two before the election. The ads were indistinguishable from campaign ads. But they did not use the words "vote for" or "vote against," phrases that rarely adom even the advertisements that candidates themselves run.
Let's make no mistake about these ads. They were not intended to educate, nor did they educate, Wisconsin voters about a particular issue or set of issues of importance to Wisconsin voters. WMC did not compare candidates to one another on a series of important issues or critical votes. WMC chose different issues to highlight in different races, depending upon what would resonate with voters in that area and what vulnerabilities the candidate had. WMC did not try to educate all voters in Wisconsin, but ran the ads only in certain media markets -- where the vulnerable candidates were running -- including a market that was as likely to hit residents of Illinois as it was to hit Wisconsin voters. WMC did not run a sustained public education campaign, but targeted the days shortly before the election and decided that the need to educate voters ended abruptly on Election Day. And WMC did not offer any solution, view, or plan of action. It simply urged voters to call the targeted candidate -- at the switchboard of the Legislature -- a day or two before the election, when one could be quite sure no candidate could be reached.
Some of today's witnesses tell us we are stuck with a constitutional doctrine that nominally allows us to preclude WMC from electioneering, but that protects WMC's right accomplish the same result through naked subterfuge. What they fail to acknowledge is that there is nothing particularly magical about the "magic words" test. When the Supreme Court declared that it is permissible to infringe on the right of corporations or labor unions to engage in electioneering, it was not because there was something particularly nefarious or corrosive about the words "vote for," "vote against," "select," or "defeat." It was because the Court considered corporate and union funding of elections to present particularly strong potential for corrupting politics and skewing elections. In my view, we are not stuck with any such wooden formulation. The range of options is much narrower than most reformers are willing to accept, but the Supreme Court need not stand by a rule that could be so readily bypassed as to be worthless.
We are navigating between the Scylla and Charybdis of two very complicated constitutional doctrines. The first doctrine -- void for vagueness -- says the government cannot punish someone without providing a sufficiently precise description of what is legal and what is illegal. The second doctrine is the overbreadth doctrine. Even a clear test that everyone understands could nevertheless be unconstitutional because it prohibits too much protected speech.
Before I go any further in describing these principles let me offer a quick aside. These two doctrines are at their most critical application, when it comes to prohibitions on speech -- the source restrictions and the fundraising restrictions, which are treated under the law as direct limits on speech. Disclosure, however, does not involve a prohibition of speech. It involves a compelled revelation of infor -mation. When legislation does not proscribe speech, there is less of a concern about either chilling or vagueness.
The Supreme Court has made clear that the governmental interests that justify disclo sure are broader than the governmental interests that justify restrictions. The Supreme Court has recognized, for example, that the public has a general "informational interest" in knowing who is supporting particular candidates. And the Supreme Court has accepted that disclosure is necessary to ensure that speakers do not evade otherwise valid restrictions. For example, I think most people agree that this would be a violation of the law: Candidate Jones says to his biggest supporter, "Do me a favor, take my campaign ad, strip off the words, "vote for" or "vote against", and buy $ 100,000 worth of air time." Unless we have some way of knowing who ran or paid for the ad, there would be no way that we could detect the violation.
So, my first observation is that a legislature could readily sever the rules governing disclosure from the rules governing restrictions, casting a wider net around around speech whose source and financing must be disclosed. Obviously, the government may not issue a blanket rule prohibiting all anonymous speech, but there is no constitutional objection to a rule requiring full disclosure for anyone who pays, say $10,000 or more, for speech in an election year that refers to a clearly identified candidate for office.
Now, back to the restrictions, where it is much tougher to navigate through Scylla and Charybdis. When the Supreme Court first devised the "express advocacy" test, it did so in the context of a statute that regulated any expenditure "relative to a clearly identified candidate." That was an extraordinarily broad phrase, and the Court saved it from invalidation by reading it very narrowly. The Court never said that no legislature could ever devise alternate language that would be both sufficiently narrow and sufficiently precise.
So where is the latitude? Even when it comes to speech, the Supreme Court has approved of lines that are not particularly clear. The line between obscenity (which can be criminalized) and protected pornography (which cannot) depends on extraordinarily subjective factors such as whether the speech is "utterly without redeeming social value." There is no magic words test in the obscenity context. Or should I say, "magic images" or "magic acts"?
Even in the context of core political speech, there are lines that do not depend upon magic words of any sort. In the context of union elections, for example, employers are permitted to make 4 i predictions" about the consequences of unionizing but they may not issue "threats." The courts have developed an extensive jurisprudence to distinguish between the two categories, yet the fact remains that an employer could harbor considerable uncertainty as to whether or not the words he is about to utter are sanctionable. The courts are comfortable with that uncertainty -- even in the context of core speech about a very important issue of public policy -- because they have provided certain concrete guidelines.
There are many model provisions that provide the requisite level of certainty without cutting out too much speech that truly is not electioneering in nature. A test that offers a series of objective, measurable factors, is one example -- factors such as the level of spending, the timing of the advertisement, and the proportion of the ad directed at a single identified candidate. The best way to guard against both vagueness and overbreadth challenges -- a technique the Court has accepted repeatedly -- is to adopt a test that incorporates an intent requirement -- a purpose test. That element that was absent in the "relative to" language that the Supreme Court insisted on 'narrowing. If a statute prohibits speech only if this speaker's "primary purpose" was to influence voters to elect or defeat a clearly identified candidate, the speaker cannot possibly complain he did not know what his primary purpose was. Nor can he complain that the statute prohibits activity that ought to be protected -- because the Supreme Court has already concluded otherwise. To make the statute even more protective, one could readily add a dollar threshold (protecting all spending below, say, $ 1 0,000) or a heavier burden of proof (such as "clear and convincing evidence") or both.
I would challenge any detractor to demonstrate with a concrete example how this test cuts
off speech -- or speakers -- whose message ought to be fully protected as non-electioneering. As to
overbreadth, try to imagine one reasonably plausible example of a protected ad that would fail this
test. Harry and Louise ads and NAFTA ads, plainly directed at influencing legislative conduct, are
undoubtedly far outside this test -- whether because they typically do not involve a clearly identified
candidate, or because the speaker could readily convince the factfinder that the primary purpose was
plainly not electioneering. The same is true of the stories about cases that the ACLU fought a
generation ago, where people who were plainly engaged in issue advocacy were prosecuted under
much more sweeping provisions. If an advocate's real goal is to advocate against the Vietnam War,
then he will readily satisfy the test -- even if he mentions Richard Nixon. If the advocate takes out
a full page newspaper advertisement advocating Nixon's impeachment, the government will have
a hard time proving that his goal is to influence the election. As to vagueness: It is the rare speaker
who would spend thousands of dollars on an advertising campaign without being clear on his intent.
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