The First Amendment and Restrictions on Issue Advocacy
Testimony of James Madison Center for Free Speech by
James Bopp, Jr.(1)
May 5, 1999
Before the Subcommittee on the Constitution of the Committee on the Judiciary
House of Representatives, United States Congress
INTRODUCTION
I am James Bopp, Jr., attorney at law, and I appreciate the opportunity to testify before this committee. A substantial part of my law practice involves defending clients from governmental incursions against constitutionally-protected freedom of speech and expression. I have defended issue advocacy through litigation, amicus curiae briefs, scholarly literature, and testimony before legislative bodies.(2) The appended summary of my professional résumé summarizes my work in this area. In addition, I serve as general counsel for the James Madison Center for Free Speech,(3) and it is in that capacity that I was asked to testify today.
In this testimony, I will: (1) summarize the constitutional protection for robust issue advocacy (i.e., communications which discuss issues of public concern, including the positions of candidates on issues and the actions of public officials, as distinguished from the express advocacy of the election or defeat of a clearly identified candidate) and (2) demonstrate by case examples the regime of intrusion and intimidation that results when government violates the bright-line distinction between issue advocacy and express advocacy and attempts to regulate or prohibit issue advocacy. These examples of Orwellian "Big Brother" intrusiveness illustrate what life would be like if certain so-called "campaign finance reform" proposals regulating issue advocacy are enacted into law.
I. Issue advocacy is constitutionally protected.
In the free society ordained by our Constitution it is not the government, but the people -- individually as citizens and candidates and collectively as associations and political committees -- who must retain control over the quantity and range of debate on public issues in a political campaign. [Buckley v. Valeo, 424 U.S. 1, 57 (1976)]
In proposals for campaign finance reform, the strong First Amendment protection afforded issue advocacy is often ignored. This does not square with the history of strong protection of issue advocacy by the courts. A full account of the rationale underpinning constitutional protection for issue advocacy and of the relevant cases protecting it will not be given here because it is readily available in my prior testimony before bodies of the United States Congress(4) and in my 1997 law review article, entitled The First Amendment Is Not a Loophole: Protecting Free Expression in the Election Campaign Context, which I co-authored with Richard E. Coleson. James Bopp, Jr. & Richard E. Coleson, The First Amendment Is Not a Loophole: Protecting Free Expression in the Election Campaign Context, 28 UWLA L. Rev. 1 (1997) (hereinafter "The First Amendment Is Not a Loophole").(5) However, a brief recap of Buckley v. Valeo, the foundational Supreme Court case on which the whole edifice of issue-advocacy protection is built, is helpful to refresh recollection. The discussion immediately below deals with protection for issue advocacy in general, but further discussion of the law as it specifically applies to contributions and expenditures will be provided infra in the discussion of the FEC's "coordination theory."
The Supreme Court has long and carefully watched over efforts to regulate political speech in order to ensure that the guarantees of the First Amendment are not denied.(6) This is because such restrictions "limit political expression 'at the core of our electoral process and of First Amendment freedoms.'" Buckley, 424 U.S. at 39 (quoting Williams v. Rhodes, 393 U.S. 23, 32 (1968)). Not only has the Court afforded strong constitutional protection for political speech in general -- including the right to urge the election or defeat of a candidate -- but it has afforded exceptionally strong constitutional protection for issue-oriented speech in particular. As a result, the Court has repeatedly given a narrowing construction to statutes regulating political speech so as to permit prohibition or restriction of only express advocacy, in order to shield the statutes from constitutional attack.
In a series of cases, the United States Supreme Court has drawn a distinction between electioneering, which may be regulated, and other expressions of free speech, including issue advocacy, which enjoy full First Amendment protection. In order to constitute electioneering, as distinguished from issue advocacy, the United States Supreme Court has adopted a bright-line test -- that the communication must "in express terms advocate the election or defeat of a clearly identified candidate for a public office." Buckley v. Valeo, 424 U.S. 1, 44 (1976) (per curiam).
In 1948, the Supreme Court considered the case of United States v. Congress of Industrial Organizations, 335 U.S. 106 (1948) ("C.I.O."). C.I.O. concerned a federal statute prohibiting a corporation or labor organization from making "any expenditure in connection with a federal election." Id. at 106-107 n.1. Under this provision, an indictment was returned against the C.I.O. and its president for publishing, in The CIO News, a statement urging all members of the C.I.O. to vote for a particular candidate for Congress in an upcoming election. Id. at 108. In affirming a dismissal of the indictment, the Court observed:
If § 313 were construed to prohibit the publication, by corporations and unions in the regular course of conducting their affairs, of periodicals advising their members, stockholders or customers of danger or advantage to their interests from the adoption of measures, or the election to office of men espousing such measures, the gravest doubt would arise in our minds as to its constitutionality. [Id. at 121.]
A lengthy footnote appended to this statement set forth several passages from case law wherein the Court had declared the specially protected nature of free speech concerning public policy and political matters:
"Free discussion of the problems of society is a cardinal principle of Americanism -- a principle which all are zealous to preserve." Pennekamp v. Florida, 328 U.S. 331, 346 [(1946)].
"The case confronts us again with the duty our system places on this Court to say where the individual's freedom ends and the State's power begins. Choice on that border, now as always delicate, is perhaps more so where the usual presumption supporting legislation is balanced by the preferred place given in our scheme to the great, the indispensable democratic freedoms secured by the First Amendment." Thomas v. Collins, 323 U.S. 516, 529-30 [(1945)].
"For the First Amendment does not speak equivocally. It prohibits any law 'abridging the freedom of speech, or of the press.' It must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow." Bridges v. California, 314 U.S. 252, 263 [(1941)]. [C.I.O., 335 U.S. at 121-22 n.21.]
In 1976, the Supreme Court considered a successor statute to the one discussed in C.I.O., The Federal Election Campaign Act of 1971, as amended in 1974. 2 U.S.C. § 431 et seq. This new statute was reviewed in Buckley v. Valeo, 424 U.S. 1. Buckley dealt, inter alia, with a provision which limited "'any expenditure . . . relative to a clearly identified candidate.'" Buckley, 424 U.S. at 41 (quoting 2 U.S.C. § 608(e)(1)). The provision placed a limit on the amount of an independent expenditure on behalf of a candidate. However, this provision was considered to be unconstitutionally vague. Buckley, 424 U.S. at 41. Therefore, the Court construed it with another provision of the same statute to require "'relative to' a candidate to be read to mean 'advocating the election or defeat of' a candidate." Id. at 42.
However, as the Buckley Court noted, this construction merely refocused the vagueness problem. The real problem, the Court noted, is that
the distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical application. Candidates, especially incumbents, are often intimately tied to public issues involving legislative proposals and governmental actions. Not only do candidates campaign on the basis of their positions on various public issues, but campaigns themselves generate issues of public interest. [Id. at 42.]
Because of the problem described, the Supreme Court settled on the "express advocacy" test as the line of demarcation between the permitted and the forbidden. This test is constitutionally mandated because only a statute applying only to a communication which expressly advocates the election or defeat of a clearly identified federal candidate has a sufficiently bright line of distinction to make it constitutionally defensible. The Supreme Court, in Buckley, explained the problem with a quotation from Thomas v. Collins, 323 U.S. 516, 535 (1945):
[W]hether words intended and designed to fall short of invitation would miss the mark is a question both of intent and of effect. No speaker, in such circumstances, safely could assume that anything he might say upon the general subject would not be understood by some as an invitation. In short, the supposedly clear-cut distinction between discussion, laudation, general advocacy, and solicitation puts the speaker in these circumstances wholly at the mercy of the varied understanding of his hearers and consequently of whatever inference may be drawn as to his intent and meaning.
Such a distinction offers no security for free discussion. In these conditions it blankets with uncertainty whatever may be said. It compels the speaker to hedge and trim. [Buckley, 424 U.S. at 43.]
Thus, the Supreme Court, in Buckley, said that
[t]he constitutional deficiencies described in Thomas v. Collins can be avoided only by reading § 608(e)(1) [placing a ceiling on independent expenditures] as limited to communications that include explicit words of advocacy of election or defeat of a candidate. [Id.]
Without such a clear line of demarcation, then, a speaker is forced to "hedge and trim" comments made on issues of public importance for fear he will be charged with forbidden electioneering. This is too heavy a burden on First Amendment rights to be constitutionally permitted.
The Buckley Court concluded that "[t]he constitutional deficiencies" of such unclear statutory
language could only be cured (if at all) by reading the statute "to apply only to expenditures for
communications that in express terms advocate the election or defeat of a clearly identified
candidate for a public office." Id. at 44. The Court added that "[t]his construction would restrict
the application of § 608(e)(1) to communications containing express words of advocacy of
election or defeat, such as 'vote for,' 'elect,' 'support,' 'cast your ballot for,' 'Smith for
Congress,' 'vote against,' 'defeat,' 'reject.'" Id. at 44 n.52.(7)
In sum, the Supreme Court created a bright-line distinction between issue advocacy, which may not be regulated, and express advocacy, which may be regulated if government can provide sufficient evidence to demonstrate that the regulation is narrowly tailored to effect only a compelling interest. Since Buckley nearly every Federal Court has adopted the "express advocacy" test.(8)
II. Issue advocacy is at risk.
Failure to retain the bright-line protection of issue advocacy results in perilous erosion of free expression rights, with Orwellian invasions of the affairs of citizens and citizens groups. When I last testified I explained what this brave new world would look like in a series of cases demonstrating prior restraints and invasions of privacy. Those cases provided a glimpse of the future if so-called campaign finance reform regulating issue advocacy is ever established. Although the specter of such regulation still looms, American citizens have begun fighting for their First Amendment rights by challenging statutes prior to their enforcement rather than waiting for "Big Brother" to nab them after the fact.
The attacks on free issue advocacy come from two directions: (1) state legislative, state agency, and state court efforts to ignore the express advocacy test and regulate issue advocacy, and (2) the Federal Election Commission's efforts to regulate political speech by claiming that it has authority over any "coordinated expenditure" by a group, even if the communication involved does not contain express advocacy. Both prongs impinge on constitutionally-protected issue advocacy by expanding the scope of government regulation beyond express advocacy. Each prong is discussed in turn.
A. Prong One: State Regulation Ignoring the Express Advocacy Test
State election laws often impinge on First Amendment freedoms through the definition of political action committees. A "political action committee," or "political committee," as it is often called in state legislation, is correctly defined as an entity which has as its major purpose, the nomination or election of candidates for public office. A political action committee is one which both meets the "major purpose" test and either makes contributions to candidates or engages in "express advocacy." Buckley v. Valeo, 424 U.S. 1, 43, 74-75 (1976) (per curiam); see The First Amendment Is Not a Loophole at 8-9, 11-19.
A typical state legislative effort to expand the scope of the term "political committee" ignores the major purpose test entirely and defines the activity which qualifies a group as a political committee based only on the group making a contribution to a candidate or an expenditure for express advocacy. Id. at 8-9. For example, a state may define a group as a political committee if it makes contributions or expenditures of a certain statutory amount to "influence" an election, a very broad term that encompasses issue advocacy voter guides. See, e.g., West Virginians for Life v. Smith, 919 F. Supp. 954 (S.D.W.V. 1996) (striking down such a statute).(9)
State legislators have also attacked issue advocacy through independent expenditure provisions. In Buckley, the Supreme Court not only protected "issue advocacy" from infringement, but it also protected a species of "express advocacy" from governmental limitation, namely, "independent expenditures." As the term implies, "independent expenditures" are disbursements for communications which expressly advocate the election or defeat of a candidate, but which are made independently of the candidate. The Buckley Court held that a limitation on independent expenditures in an election campaign violated the First Amendment to the United States Constitution because there was no compelling interest to justify such a burden on the exercise of First Amendment free speech rights. The Court initially observed that expenditure limitations
operate in an area of the most fundamental First Amendment activities. Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order "to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people." [424 U.S. at 14 (citation omitted).]
The Court also noted that the
First Amendment protects political association as well as political expression . . . [T]he First and Fourteenth Amendments guarantee freedom to associate with others for the common advancement of political beliefs and ideas. [424 U.S. at 15 (citation omitted).]
The Court then recognized that
restriction[s] on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. [Id.]
It added that
[being] free to engage in unlimited political expression subject to a ceiling on expenditures is like being free to drive an automobile as far and as often as one desires on a single tank of gasoline. [Id. at 19 n. 18.]
Based upon these principles, the Court concluded that the "expenditure limitations [at issue in Buckley] represent substantial rather than merely theoretical restraints on the quantity and diversity of political speech." Id. Furthermore, the Court stated that while the contribution limits at issue in Buckley "implicate fundamental First Amendment interests," independent expenditure "ceilings impose significantly more severe restrictions on protected freedoms of political expression and association." Id. at 23.
Having determined that expenditure limitations constituted an infringement of expression and association, the Court then considered whether government could justifiably impinge upon these highly protected freedoms. The Buckley Court analyzed the constitutionality of the independent expenditure limitation as depending "on whether the governmental interests advanced in its support satisfy the exacting scrutiny applicable to limitations on core First Amendment rights of political expression." Id. at 45-46. The Court announced that, because limitations on independent expenditures directly implicated the fundamental right to free political speech, it would apply heightened scrutiny when evaluating the constitutionality of such provisions: the statutes would have to be narrowly tailored to advance a compelling governmental interest.
The Court concluded that because of the nature of independent expenditures, government interests in preventing corruption and the appearance of corruption -- though compelling in the context of contribution limitations -- were "inadequate" to justify the limitations on independent expenditures. Id. at 46. The reason was quite simple:
the independent advocacy restricted by the [independent expenditure] provision does not presently appear to pose dangers of real or apparent corruption comparable to those identified with large campaign contributions. [Id.]
The Court then noted that
[w]hile the independent expenditure ceiling thus fails to serve any substantial government interest in stemming the reality or appearance of corruption in the electoral process, it heavily burdens core First Amendment expression . . . . Advocacy of election or defeat of candidates for [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. [Id. at 47-48.]
In sum, the Supreme Court found that limitations on independent expenditures directly infringe upon "core political speech," the most protected of First Amendment rights. Furthermore, it found that there was no compelling governmental interest to justify such a serious infringement. Consequently, it held that the independent expenditure limitation at issue in Buckley "unconstitutional under the First Amendment." Id. at 51.
In addition, state legislators have banned corporate issue advocacy including that of corporations that pose no threat to the election process. The rationale for allowing any regulation of corporate political speech is described by the United States Supreme Court as
the need to restrict 'the influence of political war chests funneled through the corporate form,' [FEC v. National Conservative Political Action Committee, 470 U.S. 480, 501, 105 S.Ct. 1459, 1470, 84 L.Ed.2d 455 (1985)]; to 'eliminate the effect of aggregated wealth on federal elections,' Pipefitters [v. United States, 407 U.S. 385, 416, 92 S.Ct. 2247, 2264, 33 L.Ed.2d 11 (1972)]; to curb the political influence of 'those who exercise control over large aggregations of capital,' [U.S. v.] Automobile Workers, [352 U.S. 567, 585, 77 S.Ct. 529, 538, 1 L.Ed.2d 563 (1957)]; and to regulate the 'substantial aggregations of wealth amassed by the special advantages which go with the corporate form of organization,' [FEC v.] National Right to Work Committee, [459 U.S. 197, 207, 103 S.Ct. 552, 559, 74 L.ED.2D 364 (1982)]. [FEC v. Massachusetts Citizens For Life, Inc., 479 U.S. 238, 257, 107 S.Ct. 616, 627, 93 L.Ed.2d 539 (1986) ("MCFL")]
The Supreme Court then explained that the above justifications are insufficient to support the regulation of groups whose major purpose is not express advocacy.
Regulation of corporate political activity thus has reflected concern not about use of the corporate form per se, but about the potential for unfair deployment of wealth for political purposes. Groups such as MCFL, however, do not pose that danger of corruption. MCFL was formed to disseminate political ideas, not to amass capital. The resources it has available are not a function of its success in the marketplace, but its popularity in the political marketplace. While MCFL may derive some advantages from its corporate form, those are advantages that redound to its benefit as a political organization, not as a profit-making enterprise. In short, MCFL is not the type of 'traditional corporatio[n] organized for economic gain.' NCPAC, supra, 470 U.S., at 500, 105 S.Ct., at 1470, that has been the focus of regulation of corporate political activity. [MCFL, 479 U.S., at 259, 107 S.Ct., at 628]
The Supreme Court then concluded
It is not the case, however, that MCFL merely poses less of a threat of the danger that has prompted regulation. Rather, it does not pose such a threat at all. Voluntary political associations do not suddenly present the specter of corruption merely by assuming the corporate form. [MCFL, 479 U.S., at 263, 107 S.Ct., at 630]
State efforts -- in Iowa, Kansas, Michigan, Arkansas, North Carolina and Alaska -- to regulate issue advocacy through the definition of "political committees," "independent expenditures," and "corporate bans" are discussed next, along with the attendant crushing burdens on free expression, free association, and privacy rights which result when the bright-line major purpose and issue advocacy lines are violated.
1. Iowa's Indifference to the Express Advocacy Test
Iowa Right to Life Commitee, Inc. ("IRLC") is a non-profit corporation whose primary purpose is to "present full detailed and factual information upon which individuals and the general public may make an informed decision about the various topics of fetal development, abortion, alternatives to abortion, euthanasia, infanticide and prevention of cruelty to children . . . ." Iowa Right to Life Committee, Inc. v. Williams, No. 4-98-CV-10399, slip op. at 3 (October 23, 1998).(10) In order to raise money to support its purpose IRLC engages in a limited amount of business activity, including selling fetal model displays, prolife pins and literature, and renting booth space at its annual conventions. Id. It also publishes a quarterly newsletter as well as voter guides and legislative scorecards to inform the public about the positions of candidates for state office on issues of importance to IRLC. Id.
Iowa Right to Life State Political Action Committee ("IRLSPAC") is a state political action committee affiliated with IRLC that is not directly associated with any political candidate, campaign or political committee. Id. slip op. at 5. IRLSPAC makes both contributions to candidates and independent expenditures. Id. slip op. at 5-6.
On July 17, 1998, IRLC and IRLSPAC filed a pre-enforcement challenge against several provisions of Iowa's Campaign Disclosure laws. After learning that the Iowa Ethics and Campaign Disclosure Board (the "Board") had adopted an expansive definition of express advocacy in 351 IAC 4.100(1) just prior to the commencement of the action, Plaintiffs filed an amended complaint on September 14, 1999. Specifically, IRLC challenged those provisions that banned corporations from making expenditures "for the purpose of influencing the vote of an elector," the definition of a political committee, the statute that required permanent organizations that are organized primarily for other purposes to form a political committee if they spend more than $500 to support or oppose a candidate, and the Board's definitions of "express advocacy" and "political corporation." IRLSPAC challenged those provisions governing "independent expenditures."
As an initial step, plaintiffs requested a preliminary injunction which the District Court granted. The District Court correctly ascertained that the "'heart' of this case rests on the distinction between 'issue advocacy' and 'express advocacy.'" Id. Slip op. at 8. 351 IAC 4.100(1)(a) defines "express advocacy" in the same manner as the United States Supreme Court in Buckley and that provision was not challenged. However, 351 IAC 4.100(1)(b) further defines "express advocacy" as that which
[w]hen taken as a whole and with limited reference to external events such as the proximity to the election, could only be interpreted by a reasonable person as containing advocacy of the election or defeat of one or more clearly identified candidate(s) or a ballot issue because:
(1) The electoral portion of the communication is unmistakable, unambiguous, and suggestive of only one meaning; and
(2) Reasonable minds could not differ as to whether it encourages action to elect or defeat one or more clearly identified candidates(s) or a ballot issue or encourages some other kind of action.
The District Court first noted that the challenged definition of "express advocacy" was virtually identical to language contained in 11 C.F.R. § 100.22(b). It then relied on cases interpreting that FEC rule to determine that the "plaintiffs would likely succeed on the merits that the regulation is unconstitutionally overbroad." Williams, Slip op. at 8-10. Specifically, the court focused on the following:
FEC restriction of election activities was not to be permitted to intrude in any way upon the public discussion of issues. What the Supreme Court did was draw a bright line that may err on the side of permitting things that affect the election process, but at all costs avoids restricting, in any way, discussion of public issues. The Court seems to have been quite serious in limiting FEC enforcement to express advocacy, with examples of words that directly fit that term. The advantage of this rigid approach from a First Amendment point of view, is that it permits a speaker or writer to know from the outset exactly what is permitted and what is prohibited. In the stressful context of public discussions with deadlines, bright lights and cameras, the speaker need not pause to debate the shades of meaning in language. [Maine Right to Life Committee, Inc. v. FEC, 941 F. Supp. 8, 12 (D. ME), aff'd per curiam, 98 F.3d 1 (1st Cir. 1996), cert. denied, 118 S.Ct. 52 (1997) ("MRLC")].(11) [Williams, slip op. at 10]
Without a bright line, "what is issue advocacy a year before an election may become express advocacy on the eve of the election and the speaker must continually re-evaluate his or her words as the election approaches." Id. The constant re-evaluation required under such an expansive definition of issue advocacy is a significant burden on free speech. Left unchallenged, Iowa's expansive definition of express advocacy would have silenced speech at the point it became most valuable and acted as a trap for the unwary.
The District Court then turned to the ban on corporate expenditures found at Iowa Code § 56.15(4) which states:
The restrictions imposed by this section relative to making, soliciting or receiving contributions shall not apply to a nonprofit corporation or organization which uses those contributions to encourage registration of voters and participation in the political process, or publicizes public issues, or both, but does not use any part of those contributions to endorse or oppose any candidate for public office.
351 IAC 4.82 which was adopted to implement section 56.15 states:
These rules do not prevent a corporate entity from providing or publicizing voter registration procedures, election day information, voting procedures or other voter education information, so long as the information provided is not designed to influence the vote of the elector.
Further, 351 IAC 4.86 sets forth the standard used to determine whether a particular corporation would be exempt from Iowa Code § 56.15's general ban on the use of corporate funds. That rule provides:
The prohibitions applicable to corporate entities shall not apply to political corporations which meet all of the following tests:
1. The corporation was organized solely for political purposes and cannot engage in business activities.
2. The corporation is not sponsored by a business corporation or labor union, and has a policy of refusing contributions from corporations or unions.
3. The corporation has no shareholders or others which have a claim on its assets or earnings.
A corporate entity may apply for status as a political corporation under Iowa Code chapter 56 by submitting a letter signed by a corporate officer which affirms the above requirements and provides other pertinent details of the corporations activities. A letter of approval or denial from the board will be provided to the corporation. The acceptance of contributions from a corporation seeking status as a political corporation is subject to the letter of approval and, if approval is not granted, any corporate contributions received shall be refunded by the candidates' committees or other political committees. [351 IAC 4.86]
Because IRLC engages in some minor business activities and has no policy preventing it from receiving contributions from unions or business corporations it fails to qualify for an exemption under the plain language of 351 IAC 4.86.
Although 351 IAC 4.86's language was adopted from the United States Supreme Court's opinion in FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986) ("MCFL"), it fails to take into account the reasons for the exception carved out in MCFL. The MCFL court stated that purpose as follows:
We acknowledge the legitimacy of Congress' concern that organizations that amass great wealth in the economic marketplace not gain unfair advantage in the political marketplace. . . . Some corporations [however] have features more akin to voluntary political associations than business firms, and therefore should not have to bear burdens on independent spending solely because of their incorporated status. [Id. 479 U.S. at 263.]
At least one Court has stated that MCFL was "an application . . . of First Amendment jurisprudence to the facts in MCFL" and, thus, the underlying rationale should be applied to the facts before the court rather than a rigid adherence to the three specific prongs set forth in MCFL. Day v. Holahan, 34 F. 3d 1356, 1363-64 (8th Cir. 1994).(12) Specifically, the court should consider whether the corporations political resources "reflect political support," whether the business activities of the corporation are "incidental to its political purposes," and whether the organization has served as a "conduit for the type of direct spending that creates a threat to the political marketplace." Id. Using the underlying rationale of MCFL as articulated in Day the District Court determined that the "IRLC is likely to succeed on the merits of its argument that rule 4.86 unconstitutionally infringes on its right to free speech." Williams, slip op. at 16.(13)
The District Court next turned to IRLC's claim that the definition of a "political committee" was overbroad . A "political committee" is defined, in relevant part, as:
Political committee also includes a committee which accepts contributions in excess of five hundred dollars in the aggregate, makes expenditures in excess of five hundred dollars in the aggregate, or incurs indebtedness in excess of five hundred dollars in the aggregate in a calendar year to cause the publication or broadcasting of material in which the public policy positions or voting record of an identifiable candidate is (sic) discussed and in which a reasonable person could find commentary favorable or unfavorable to those public policy positions or voting record. [Iowa Code § 56.2(16).]
IRLC claimed that this provision was overbroad because the words "for the purpose of supporting or opposing a candidate for public office" were not defined. According to the Court the plain meaning of the words "support" and "oppose," as defined in the American Heritage College Dictionary, include issue advocacy. Williams, slip op. at 17. Thus, contrary to Buckley, the definition encompassed organizations that did not engage in express advocacy. The District Court held that IRLC was likely to succeed on that claim as well. Id.
Iowa Code § 56.6(6) states
A permanent organization temporarily engaging in activity which would qualify it as a political committee shall organize a political committee and shall keep the funds relating to that political activity segregated from its operating funds. The political committee shall file reports in accordance with this chapter. When the permanent organization ceases to be involved in the political activity it shall dissolve the political committee.
Because Iowa Code § 56.6(6) relies on the definition of a political committee to set its parameters, the District Court held that IRLC was likely to succeed on the merits of that issue as well. Id. at 18.
Finally, the District Court turned to IRLSPAC's challenge of the "independent expenditures" provisions. Iowa Code § 56.13(1) and several provisions of the Iowa Administrative Code required that all independent expenditures be submitted to the "benefited candidate" so that the candidate could either approve or disavow the expenditure. IRLSPAC claimed that these provisions violated the constitution because they were not narrowly tailored to serve a compelling state interest, violated its right to choose the content of its message, the prohibition on compelled speech, and its right not to associate with another or another's speech. The District Court determined that the provisions were not narrowly tailored to serve a compelling state interest and declined to address the remaining constitutional claims. Williams, slip op. at 22.
In making that determination, the District Court first cited Atkins v. FEC, 101 F.3d 731, 741 (D.C. Cir. 1996), vacated on other grounds, ___ U.S. ___, 118 S. Ct. 1777 (1998), for its conclusion that "[i]ndependent expenditures are the most protected form of political speech because they are closest to pure issue discussion and therefore farthest removed from the valid gaol of preventing election corruption." The District Court also relied on Day v. Holahan, 34 F.3d 1356 (8th Cir. 1994), in which the plaintiffs challenged a statute that both increased the spending limit of the candidate not benefitted by an independent expenditure and paid that candidate one half of the amount disbursed as an independent expenditure.
The Eighth Circuit found the statute was a content-based restriction that produced an unconstitutional "chilling effect" on the person or organization making the independent expenditure. As explained by the court: "The knowledge that a candidate who one does not want to be elected will have her spending limits increased and will receive a public subsidy equal to half the amount of the independent expenditure . . . chills the free exercise of that protected speech." [Williams, slip op. at 21 (citing Day, at 1359).]
The District Court then decided, that similar to the statute at issue in Day, the independent expenditure provisions target "independent expenditures" and, thus, chill the free exercise of protected speech. Williams, slip op. at 21.
The District Court then properly shifted the burden to the State to establish that the statutes and regulations are narrowly drawn to serve a compelling state interest. Id. The State's proffered interest, in "assuring that independent expenditures are, indeed, independent and not a means by which a candidate can circumvent including contributions on a candidate's own disclosure report," was then found constitutionally insufficient to justify the burden on free speech. Id. at 22.
The District Court found that the plaintiffs' were likely to succeed on the merits on all of the issues that were raised in their motion for preliminary injunction. After examining the remaining preliminary injunction factors, the District Court granted IRLC and IRLSPAC a preliminary injunction. The State has appealed the District Court's decision with regard to the definition of express advocacy and the independent expenditure provisions. Further, the court has stated that if the Appeals Court affirms the decision, it will request an opinion from the Iowa Supreme Court as to whether the definition of a "political committee" can be narrowed to include only express advocacy which would eliminate the constitutional problems with the definition. Thus, the District Court has protected issue advocacy as required by the First Amendment and explained in Buckley.
2. Kansas' State Agency Effort to Regulate Issue Advocacy
During Kansas' 1998 primary elections, Kansans For Life, Inc. ("KFL"), ran an ad promoting its issues. That ad took a candidate to task for claiming to be pro-life when his supporters included well known abortionists. The text of that ad is as follows:
Have you ever had someone try to trick you? You know twist the truth to make you think one thing instead of another? Children are quite good at this.
Unfortunately, Governor Bill Graves is trying to do the same thing, telling you he is pro-life when, in fact he is a strong supporter of legal abortion in Kansas. During his last campaign, Gov. Bill Graves held a rally for his supporters--Dr. George Tiller, the infamous late-term abortionist was in attendance to support Bill Graves. We know that Bill Graves props up the abortion industry because we are Kansans For Life--it's our job to know who is pro-life and who is pro-abortion. Yet there are political ads, which this radio station is required by law to run, by Bill Graves trying to deceive you.
The truth is David Miller, who is challenging Bill Graves for Governor, is pro-life. David Miller has always been pro-live. David Miller will not try to fool you just because it is an election.
Now you know the truth!
Paid for by Kansans For Life.
It should be immediately pointed out that the advertisement neither urged people to vote against Bill Graves nor encouraged citizens to vote for David Miller. Instead, they made known each man's position on abortion. Any voter listening to the ad would, as a result, know more about the candidates' positions on abortion than they did before -- whether they liked that position, or not. This is an example of what the U.S. Supreme Court has described as constitutionally-protected "issue advocacy."
Still, the Kansas Governmental Ethics Commission (the "Commission"), based on an anonymous complaint, suggested that Kansans For Life request an advisory opinion as to whether its ad was express advocacy. After reviewing the ad the Commission determined, in spite of the clear statutory definition, that the ad constituted express advocacy of the election or defeat of a candidate and, therefore, was subject to the disclosure requirements of the Kansas Campaign Finance Act.(14)
The court based on Buckley and the "arguably broader" definition of express advocacy elucidated by the ninth circuit in FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987) cert. denied, 484 U.S. 850 (1987), determined that
[t]he enforcement policy described in the advisory opinion at issue does not conform with any of the approaches described above. It does not restrict regulation to advertisements which use certain "buzz" words. Nor does it restrict regulation to advertisements which can only be reasonably interpreted as advocating the election or defeat of a candidate; which contain a clear plea to action; and which are unambiguous. [Kansans For Life, 1999 WL 115156 at *9-10.](15)
The District Court then declared that "plaintiff has established a realistic danger that defendants will apply an unconstitutionally vague and overbroad enforcement policy against issue advocacy by plaintiff that is protected by the First Amendment" and declared the policy unconstitutional. It also permanently enjoined the Commission from enforcing Kansas' campaign financing laws using the overbroad definition of express advocacy.
3. Michigan's "Name or Likeness" prohibition
In 1998, the Michigan Secretary of State, pursuant to her authority to implement the Michigan Campaign Finance Act, promulgated Rule 169.39(b). The Rule was effective on August 12, 1998, and became enforceable on September 19, 1998. The relevant portion of that Rule states:
Except as otherwise provided in this rule, an expenditure for a communication that uses the name or likeness of 1 or more specific candidates is subject to the prohibition on contributions and expenditures in section 54 of the act if the communication is broadcast or distributed within 45 calendar days before the date of an election in which the candidate's name is eligible to appear on the ballot. [M.C.L.A. § 169.39b (emphasis added).]
Section 54 of the Act, M.C.L.A. 169.254, prohibits corporations from making expenditures in support of or in opposition to any candidate for state office.
Two groups, Right to Life of Michigan, Inc. ("RLM"), and Planned Parenthood Affiliates of Michigan, Inc. ("PPAM"), brought separate pre-enforcement challenges to the rule claiming that it was overbroad because it encompassed protected issue advocacy and, thus, violated their right to free speech under the First Amendment. In both cases, the State claimed that the rule was a permissible infringement of the corporations' First Amendment rights because the State had a compelling interest in protecting against the real or perceived corrupting influence on the election process by corporations and labor unions, and that the regulation of corporate political activity is proper because of the potential for the unfair deployment of wealth for political purposes.
On September 16, 1998, the United States District Court for the Western District of Michigan, held that the Rule was unconstitutionally overbroad because, as written, the Rule prohibited not only express advocacy but also issue advocacy. "The rule prohibits a statement that Candidate X introduced or sponsored specific legislation; that Candidate Y voted against specific pending legislation; or that Candidate Z had a birthday, was in an accident, or died." Right to Life of Michigan, Inc. v. Miller, 23 F. Supp. 2d 766, 769 (W.D. Mich. 1998).(16) The court then found that the State's proffered compelling interest was merely a request for it to
ignore the express advocacy distinction set forth in Buckley and adopt instead a less stringent rule that would allow state regulation of all corporate speech in the 45 days prior to an election that names or depicts a candidate, regardless of the content of the message, on the basis that it might constitute indirect advocacy on behalf of or against a candidate. [Id. at 770 (emphasis in original).]
Similarly, the United States District Court for the Eastern District of Michigan, decided on September 21, 1998, that the rule was facially unconstitutional. Planned Parenthood Affiliates v. Miller, 21 F. Supp.2d 740, 745 (E.D. Mich. 1998). The District Court for the Eastern District of Michigan determined that the "[t]he Rule as drafted infringes on protected speech by prohibiting expenditures for issue advocacy." Id. The Court further determined that the Rule was not justified by a compelling state interest because it covered corporations, like PPAM, which were formed to disseminate political ideas, not to amass capital, and, thus, corporations which clearly do not possess the potential for the unfair deployment of wealth for political purposes. Id.
As demonstrated above, the Secretary's rule essentially defined express advocacy as any communication which included the "name or likeness" of a candidate regardless of the message. This clear violation of the "express advocacy" test required the District Courts' independent decisions to permanently enjoin the enforcement of the rule. Once again, the court's vigilance protected free speech from misguided agency efforts to regulate issue advocacy.
4. Arkansas's Unconstitutionally Low Contribution Limits
After the Campaign Contribution Limits and Disclosure Act (the "Act") was passed by initiative in 1996, three individuals, Ron Russell, Kent Ingram, and William R. Austin along with Associated Industries of Arkansas Political Action Committee brought a pre-enforcement challenge to several of its provisions on February 3, 1997, in the Eastern District of Arkansas. Russell v. Burris, 978 F.Supp. 1211 (E.D. Ark. 1997) (hereinafter "Russell I"). The plaintiffs also challenged several provisions of prior legislation that remained unchanged by the Act's provisions. Id. Shortly thereafter, another individual Marianne Linane(17) and Arkansas Right to Life State Political Action Committee brought a similar pre-enforcement challenge in the Western District of Arkansas. Arkansas Right to Life State Political Action Committee v. Butler, 983 F. Supp. 1209 (W.D. Ark. 1997) (hereinafter "ARLSPAC I").(18)
The Russell plaintiffs
claim[ed] that the following provisions of [the Act] violate[d] their rights to freedom of political expression (speech and association under the First Amendment: (1) the $100 and $300 limits on campaign contributions to candidates; (2) [the Act's] authorization for local jurisdictions to set even lower contribution limits; and (3) the $500 limit to annual contributions a person may give to an independent expenditure committee. The plaintiffs challenge, on the same grounds, Arkansas $2000 per person limit on annual contributions to an approved PAC. . . . The plaintiffs claim further that in allowing small donor PACs to contribute $2500 per election to a candidate, Arkansas denies equal protection of the laws to approved PACs, which are subject to the $100 and $300 individual contribution limits. [Russell I, at 1216-17.]
The Eastern District Court subsequently held that
(1) the $100 dollar (sic) contribution limit on the amount individuals can contribute to certain candidates was constitutional, except as applied to the offices of Supreme Court Justices and Court of Appeals Judge; (2) the $300 dollar (sic) limit on the amount individuals can contribute to enumerated statewide offices was unconstitutional; (3) the $100 and $300 limits on the amount that approved PACs may donate to candidates for state and local offices, as opposed to the $2,500 limit on the amount small-donor PACs may donate to candidates was constitutional and did not violate the Equal Protection Clause of the Fourteenth Amendment; (4) the $200 limit was constitutional; (5) plaintiffs lacked standing to challenge the constitutionality of the $5000 limit; and (6) plaintiffs' claim that the authority granted to local jurisdictions to set lower contribution limits was not ripe. [Arkansas Right to Life State Political Action Committee v. Butler, 29 F.Supp.2d 540, 542 (W.D. Ark. 1998) (opinion after appeal) (hereinafter "ARLSPAC III").](19)
All parties subsequently appealed.
Meanwhile the ARLSPAC plaintiffs
claim[ed] that certain provisions of Arkansas' campaign finance laws impinge[d] on their First Amendment rights to free speech and association, as well as, their Fourteenth Amendment right to equal protection. Specifically, plaintiffs claim that Arkansas' campaign finance laws violate the First Amendment by: (1) unreasonably limiting the amounts that political action committees (hereinafter "PACs") and individuals may contribute to other PACs and political candidates; (2) requiring persons who make independent expenditures to place disclaimers on political advertisements; (3) conditioning receipt of a credit on the content of speech;(20) (4) banning campaign contributions during sessions of the General Assembly; and (5) granting authority to localities to set even lower contribution limits than state law imposes. Plaintiffs allege that the Act violates the Equal Protection Clause of the Fourteenth Amendment by treating similarly situated persons differently with respect to the amounts that they may contribute and the benefits they might receive. Finally, plaintiffs contend that the contribution limits contained in Title 7 of the Arkansas Code are unconstitutional on their face. Plaintiffs seek declaratory and injunctive relief from this court. [ARLSPAC I, at 1213-14.]
In response to the ARLSPAC plaintiffs' motion for summary judgment the District Court denied plaintiffs' motion for summary judgment on all of their claims with one exception; it found the $300 limit on contributions to candidates for governor unconstitutional. On appeal, the Eighth Circuit affirmed stated that it had resolved the constitutional issues in the companion case of Russell II v. Burris, 146 F.3d 563 (8th Cir. 1998) ("Russell II"),affirmed the judgment of the trial court and remanded for further proceedings consistent with this opinion. Arkansas Right to Life State Political Action Committee v. Butler, 146 F.3d 558, 560-561 (8th Cir. 1998).(21)
In Russell II, the Eighth Circuit stated
We also believe that the candidate contribution limits set forth in [the Act] are too low to allow meaningful participating in protected speech and association. See Carver, 72 F.3d at 641-42. In Buckley, 424 U.S. at 20-35, 96 S.Ct. 612, the Supreme Court approved a $1,000 contribution limit as a narrowly tailored means to address the problem of large contributions. As we noted in Day v. Holahan, 34 F.3d 1356, 1366 (8th Cir. 1994), cert. denied, 513 U.S. 1127, 115 S.Ct. 936, 120 L.Ed.2d 881 (1995), inflation has eroded approximately 60 percent of the value of a dollar since 1976. A $1,000 contribution in 1976 would thus be worth about the same as a $2,500 contribution today. We recognize that the contribution limit upheld in Buckley does not constitute a constitutional minimum and that we may not fine-tune the contribution limits established by [the Act]. See Carver, 72 F.3d at 641. We must, however, invalidate the contributions limitations if they are different in kind from those that Buckley upheld. See id. [Russell II, at 570.](22)
The Court then determined that the $100 and $300 contribution limits to candidates were different in kind from the $1000 contribution limit approved in Buckley, and, thus, were unconstitutionally low. Russell II, at 571. It further held that $200 contribution limit to PACs was different in kind from the limits approved in Buckley and an unconstitutional infringement on free speech and association. Id. The Court then declared that the $2,500 limit on candidate contributions by "small-donor" PACs was a violation of the equal protection clause because it burdened ordinary PACs more than small-donor PACs. Id. at 572. However, the Court found that the challenge to the provision allowing local governments to set lower limits was not ripe because no local government had availed itself of that power. Id. at 573. The case was then remanded to the District Court "for the entry of a declaratory and injunctive relief consistent with this opinion." Id.
On remand, the ARLSPAC plaintiffs renewed their motion for summary judgment. The District Court enjoined enforcement of those provisions that placed a $500 limit on contributions to independent expenditure committees, that required a disclaimer to be placed on independent expenditures, and that prohibited contributions to office holders during the 30 days before, during, and after the regular session of the General Assembly. Specifically, the District Court, after noting that the State had failed to present evidence that large contributions to independent expenditure committees has attributed to actual or perceived corruption, held that "$500 limit is unconstitutional as a matter of law because it is too low to allow meaningful participation in the political process and, thus, is not narrowly tailored to serve the state's alleged compelling interest." ARLSPAC III, at 546-47.
Next, the Court held that the identification requirement was constitutional but that the State had not demonstrated a compelling interest for requiring an additional disclaimer and thus, that the disclaimer provision was unconstitutional as a matter of law. Id. at 549-550. Finally, the Court held that the 30 day black-out period on contributions to incumbents was not narrowly tailored because "it does not take into account the fact that corruption can occur any time, and that only large contributions pose a threat of corruption." Id. at 553.
The Eighth Circuit, by its recognition that Buckley did not set a constitutional minimum for contribution limits, properly evaluated whether the low limits set by the Act were so low as to prevent meaningful participation in political discourse. Protecting free speech in this manner is necessary to ensure that our founding fathers' vision of that right is not eroded.
5. North Carolina's Attack on Issue Advocacy
While preparing for North Carolina's 1996 general election, North Carolina Right to Life, Inc. ("NCRL"), North Carolina Right to Life Political Action Committee ("NCRLPAC"), and NCRL's president Barbara Holt became concerned that some of the activities in which they wished to engage might violate North Carolina's election law. North Carolina Right to Life, Inc. v. Bartlett, 168 F.3d 705, 709 (4th Cir. 1999).(23) Specifically, NCRL feared that the distribution of its voter guides would make NCRL a political action committee under the Statutes and/or violate North Carolina's ban on corporate expenditures for a political purpose.
To determine whether these concerns were valid, NCRL requested an advisory opinion from the Chief Deputy Director of the State Board of Elections (the "Board") which inadvertently included an endorsement page from NCRLPAC. The Board responded that the voter guide would violate the corporate prohibition against corporate expenditures and that any expenditure for a political purpose would make NCRL a political committee. After realizing the inadvertent inclusion of NCRLPAC's endorsement page, NCRL sent a second letter to the Board asking whether the distribution of the voter guide without that page would violate North Carolina's election laws. Again the Board responded that it would. Thus, they commenced their pre-enforcement challenge to several provisions of North Carolina's election and campaign finance provisions.
In their suit, NCRL challenged the definition of a political committee as overbroad because it includes groups that engage only in issue advocacy and the State's total ban on corporate expenditures. "NCRLPAC and Holt challenged the provision prohibiting lobbyists, and the political committees that employ them, from contributing to members and candidates for the General Assembly and Council of State while the General Assembly is in session" and its counterpart "prohibiting members and candidates for the General Assembly and Council of State from soliciting contributions from lobbyists and the political committees that employ them." Id. Finally, NCRLPAC challenged the provision that required it to "provide prospective donors with the name of the candidate for whom the money will be used."(24)
Id. at 709-710. Each of the plaintiffs sought declaratory and injunctive relief on each of their claims. Id. at 710.
North Carolina General Statute § 163-278.6(14) defines a political committee as "a combination of any two or more individuals, or any person, committee, association, or organization, the primary or incidental purpose of which is to support or oppose any candidate or political party or to influence or attempt to influence the result of an election." (Emphasis added). "The consequences of finding NCRL a political committee are substantial--NCRL would be required to resister as such, keep detailed records of its expenditures and contributions, and file organizational and financial reports with the State." North Carolina Right to Life, at 712 (citing N.C. Gen.Stat. § 163-278.7(b), .8, .9, .11).
The State requested that the Court impose a narrowing construction to save the statute from unconstitutionality. However, the court could not because
[f]irst, unlike the provisions of FECA, North Carolina's definition expressly sweeps within its ambit those groups that only incidentally engage in express advocacy. This is a much broader definition of political committee than that at issue in Buckley, and to save it would require quite a stretch--in fact, we would have to excise the word "incidental" from the statute.
Second, the North Carolina definition of political committee covers groups engaging in issue advocacy by explicitly juxtaposing express and issue advocacy, and thereby indicating that it encompasses both. Specifically, the definition covers any group "the primary or incidental purpose of which is to support or oppose any candidate . . . or to influence or attempt to influence the result of any election." The only reasonable reading of this definition is that political committee encompasses both entities that have as a primary or incidental purpose supporting a candidate-- i.e., engaging in express advocacy-- and those that merely wish to influence an election--i.e., engage in issue advocacy. To accept the State's proffered interpretation would read the references to influencing elections (a class form of issue advocacy) right out of the statute. [Id. at 712-713.]
Thus, the court was unable to narrowly construe the statute so as to save it from being unconstitutionally vague and overbroad.
With regard to NCRL's challenge to North Carolina's ban on corporate expenditures and contributions for political purposes, the court found that the statute was "substantially overbroad and thus unconstitutional." Id. at 714. Specifically, it found that by failing to exclude MCFL type organizations from its ambit "North Carolina law fails 'to distinguish between corporations which pose a threat to the integrity of the political process and those which do not.'" Id. (quoting the district court). In making its determination, the Fourth Circuit "agree[d] with those circuits that have addressed the question, each of which has held that the list of nonprofit corporate characteristics in MCFL was not 'a constitutional test for when a nonprofit corporation must be exempt,' but 'an application, in three parts, of First Amendment jurisprudence to the facts in MCFL.'" Id. (citing Day v. Holahan, 34 F.3d 1356, 1363 (8th Cir. 1994); see also FEC v. Survival Educ. Fund, Inc., 65 F.3d 285, 292 (2d Cir. 1995)).
The Court then turned its attention to the challenges regarding contributions by lobbyists and their employers. The Fourth Circuit refused to find either provision unconstitutional because the laws were narrowly tailored to serve the state's compelling interest in avoiding corruption and the appearance of corruption. North Carolina Right to Life, at 716. Specifically, the court rejected plaintiffs' contentions that the statute was not narrowly tailored because it covers small as well as large contributions and prevents candidates who are in no position to sell political favors from receiving contributions. Id. With regard to the first contention, the Court concluded that it was "not in the position to 'second guess a legislative determination as to the need for prophylactic measures where corruption is the evil feared.'" Id. (quoting National Right to Work Comm., 459 U.S. at 210, 103 S.Ct. 552). With regard to the second, it found that the threat of making a contribution to a "challenger can supply as powerful incentive as contributing to that legislator himself" when trying to gain favorable treatment from a legislator. Id.
Although it refused to invalidate the ban on contributions by lobbyists during, the Court invalidated two key provisions. After recognizing that the definition of a political committee was overbroad in that it purposefully included issue advocacy within its parameters, and that the corporate ban had failed to make an exception for political corporations that pose no threat to the integrity of the political process, it declared those provisions unconstitutional and enjoined their enforcement. By so holding, the Fourth Circuit, protected the rights of American Citizens to participate freely in political discourse.
6. The Alaska Supreme Court's failure to protect constitutional rights of free speech and association
On April 16, 1999, the Alaska Supreme Court handed down its opinion on a challenge to Alaska's campaign financing statutes brought by the Alaska Civil Liberties Union ("AkCLU") in response to the legislature's comprehensive "reform" of Alaska's campaign financing laws (the "Act") which became effective January 1, 1997. Alaska v. Alaska Civil Liberties Union, 1999 WL 219443 *1 (April 16, 1999) ("AkCLU"). The AkCLU
complained that the Act violated both the First Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, and article I, section 5 of the Alaska Constitution. It sought declaratory and injunctive relief specifically challenging the validity of the Act's provisions containing (1) limits on campaign contributions; (2) bans on certain types of campaign contributions; (3) restrictions on the timing of contributions; (4) restrictions, which the AkCLU characterized as expenditure limitations, on campaign funds carry-forwards and inter-candidate contributions; and (5) bans on independent expenditures by certain organizations. [Id. at *2.]
The Alaska Supreme Court stated
[t]he Buckley Court set out three potential outer limits on contribution restrictions. First, it noted that "[g]iven the important role of contributions in financing political campaigns, contribution restrictions could have a severe impact on political dialogue if the limitations prevented candidates and political committees from amassing the resources necessary for effective advocacy." Restrictions preventing "effective advocacy" would directly impact speech, and therefore would be invalid. Second, the Court warned that at some level contribution limits would become so low that "distinctions in degree" between limits would become "differences in kind." Third, it approved the limits intended to prevent corruption through "large" contributions, but warned that a statute barring contributions that were not "large" would be presumptively overbroad and thus invalid. [Id. at *6.]
The Alaska Supreme Court also examined several cases after Buckley and summarized the law of free speech and association in the campaign finance context as
These cases leave us with a jurisprudence based on the threat of corruption and the appearance of corruption, and dependent on case-specific analysis. Speech relating to ballot initiatives (where quid pro quo corruption is not a significant danger) is entirely protected. In campaigns for political office, individual speech is protected to the extent it is independent and poses no danger of quid pro qo arrangements; contributions and coordinated expenditures are subject to regulation. Corporations that meet special nonbusiness criteria (as per MCFL) pose no danger of corruption, and have rights similar to those of individuals. But corporations that doe not meet those criteria are--given the threat of corruption their state-created advantages pose--completely subject to regulation. [Id. at *7.]
After discussing Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 110 S.Ct. 1391, 108 L.Ed.2d 652 (1990), wherein the United States Supreme Court upheld an independent expenditure ban as applied to a nonprofit corporation because the Michigan statute permitted corporations to make expenditures through separate segregated funds, the court held that Austin supported the ban on independent expenditures by business corporations and unions. AkCLU, at *9-11. However, it determined that the statute was unconstitutional as written because it did not provide an exception for MCFL type organizations. Id. at *12. Still, the Alaska Supreme Court "decline[d] to strike down the statute on the theory the expenditure ban is overbroad as written," and chose "instead to read the statute narrowly" to exempt MCFL type organizations. Id. It then interpreted the statute to exempt those entities that (1) "cannot participate in business activities," (2) "have no shareholders who have a claim on corporate earnings," and (3) "are independent from the influence of business corporations." Id.
Next, the Alaska Supreme Court turned to the ban on contributions to candidates and groups by corporations, companies, partnerships, firms, associations, organizations, business trusts or sureties, and labor unions. Although the court recognized that "[t]his outright ban on contributions directly implicates both political speech rights and associational rights of would-be contributors," it concluded that the same "considerations which justify the ban on independent expenditures by 'non-group' entities also justify this contribution ban." Id. at *14. As before, it also created an MCFL exception and stated "[w]e believe the permissible scope of these bans is best determined in the context of fact- and class-specific litigation, especially given the lack of briefing on the issue here," and declined "to list which types of entities the statutes may permissibly affect." Id.
The Alaska Supreme Court next addressed the restrictions on contributions by nonresidents. Specifically, the Alaska statutes permit nonresident individuals to make candidate contributions subject to the same sliding scale as residents and to groups or political parties subject to a 10% aggregate limit on nonresident contributions. "Nonresident groups may make no contributions at all. Nonresident individuals and groups may make unlimited independent expenditures." Id. at *15. The Court accepted the state's compelling interested in limiting the "potential for distortion" of Alaska's political process by nonresidents and declined to find that the limits were "unduly low." Id. at *17. Further, it did "not read the record to indicate that these limits in fact impinge on nonresidents' speech or associational rights" at all. Id.
The Alaska Supreme Court also upheld a ban on registered lobbyists' out-of-district contributions after finding that contributions by lobbyists are "particularly susceptible to the perception that they are buying access when they make contributions." Id. at 18. It also held that the ban was narrowly tailored to the state's compelling interest in preventing the perception of corruption. Id.
Turning to the Act's contribution limits the Court upheld each of the Act's limitations because of the absence of "evidence that diminished contribution limits have impaired effective advocacy or are qualitatively different in kind" from those in Buckley. Id. at *24-25. It also upheld post-election contribution limits because they "clearly address corruption and its appearance," while invalidating the Act's pre-election contribution limits because it agreed with the Massachusetts Supreme Judicial Court's statement that
[L]egislation that has the effect of prohibiting a contributor from expressing support and affiliation with a candidate for a lengthy period constitutes a significant interference with the right of association. A contributor might have compelling reasons for desiring to express that support at a particular time other than the year of an election. [Id. at *28 (quoting Opinion of the Justices to the House of Representatives, 418 Mass. 1201, 637 N.E.2d 213, 218 (Mass. 1994)).]
Finally, the court upheld both the restrictions on the "amount of unused contributions a candidate may carry forward to the next campaign" and the ban on inter-candidate contributions from campaign funds. AkCLU, at *30-31. Specifically, the Court decided that with regard to the carry forward provisions, the State's compelling interest in preventing "candidates who are unopposed, or opposed by weak candidates, from taking contributions in one campaign to avoid limits in the next one," was narrowly tailored to achieve that end. Id. at *30. With regard to the ban on inter-candidate contributions from campaign funds, the Court determined that the state's compelling interest in preventing: "(1) use of donations contrary to the purpose of the original contributor; (2) corrupt use of campaign funds for power-brokering; and (3) evasion of contribution limits by funneling," was narrowly tailored because it did not prevent inter-candidate contributions from candidate's personal funds. Id. at *31.
Thus, unlike the above cases and in spite of Buckley, the Alaska Supreme Court upheld campaign finance laws that are not narrowly tailored to the state's compelling interest in preventing corruption and the appearance of corruption. Specifically, it allowed the state to ban both contributions to candidates and independent expenditures by groups without a provision, like that in Austin, allowing such organizations to speak through alternative channels such as segregated funds. However, the time for appeal is not yet past, and the plaintiffs may very well continue their challenge by petitioning the United States Supreme Court.
B. Prong Two: The Coordination Theory
The second prong of the attack on issue advocacy is the claim that any coordinated expenditure which influences an election is subject to government regulation or prohibition even if it does not contain express advocacy. This "coordination theory" is discussed in this section. Then an example of the theory in action will reveal the crushing burden on the free expression and privacy of citizen groups that results from trespass across the constitutionally-mandated border between issue advocacy and express advocacy. First, however, it is important to note why the FEC is so intent on regulating issue advocacy that it claims is coordinated. The answer lies in the restrictions which attach under federal law.
1. The Statutory Burden on "Contributions"
As discussed below, the goal of the coordination theory is to treat disbursements for political speech that would otherwise be constitutionally protected as "contributions" to a candidate so that they fall within statutory prohibitions and limitations. Federal law bars corporations from making political "contributions." 2 U.S.C. § 441b. Individuals may
make political "contributions," but are limited to only $1,000. Thus, making issue advocacy and independent expenditures into contributions by means of the coordination theory seriously restricts political speech in the form of disbursements that would otherwise be unrestricted.
2. The Coordination Theory and Its Constitutional Flaws
FEC Regulations located at 11 C.F.R. §§ 100.7, 100.22(25) and 109.1 set out the circumstances under which a disbursement(26) for political speech is determined to be "coordinated" with a candidate and thus a "contribution," rather than an "expenditure," allegedly subjecting the speech to heightened regulation by the FEC.(27) If a disbursement is "coordinated" with a candidate, the disbursement is considered a "contribution" to the candidate, if it might influence an election, even if it did not contain express advocacy.
These rules should be seen in the context of efforts by the FEC to broaden the reach of its regulatory activity and, specifically, its persistent -- albeit spectacularly unsuccessful -- attempt to regulate and to prohibit issue advocacy. As summarized in the 1996 Special Report by the Fair Government Foundation entitled The FEC's Express War on Free Speech, the FEC has conducted a twenty-year campaign aimed at vitiating or substantially modifying the Supreme Court's holding in Buckley v. Valeo, 424 U.S. 1 (1976), that issue advocacy is constitutionally protected and is not subject to the Federal Election Campaign Act of 1971, as amended, 2 U.S.C. § 431 et seq. (FECA), and that only speech which in express terms advocates the election or defeat of a clearly identified candidate may be regulated by the FEC. This campaign, which has included unsuccessful enforcement actions(28) and invalidated regulatory efforts,(29) has been wrecked on the shoals of the First Amendment.
Rather than focus on issue advocacy as an "expenditure" under the FECA, the rules attempt to ensnare issue advocacy as a "contribution." However, the protection of issue advocacy does not depend on FEC labeling; it is intrinsic in the First Amendment and in the FECA, as adopted by Congress and as interpreted by the Supreme Court.
a. Government may only regulate expenditures and contributions which are for express advocacy.
Under the FECA, "`expenditure' and `contribution' are defined in parallel provisions in terms of the use of money or other valuable assets "`for the purpose of . . . influencing' the nomination or election of candidates for federal office." Buckley, 424 U.S. at 77 (citing 2 U.S.C. §§ 431(e) and (f)). Because of the ambiguity of this phrase and of the concern that it has the "potential for encompassing both issue discussion and advocacy of a political result," the Court in Buckley gave it a limiting construction in both definitions "to reach only funds used for communications that expressly advocate the election or defeat of a clearly identified candidate." Id. at 79-80.
Under the FECA, therefore, whether a disbursement for a communication will be deemed a "contribution," rather than an "expenditure," depends not on its content -- because, in either event, it must contain "express advocacy" -- but upon whether it has been "coordinated" with a candidate. Id. at 46, 78. Thus, as Professor BeVier would explain, issue advocacy is not
speech that "in express terms advocates[s] the election or defeat of a clearly identified candidate for federal office," which is the only kind of speech for which the Court has held that contributions may be constitutionally restricted. To regulate contributions for speech that is other than express advocacy of the election of particular candidates, the Court said, would create intractable vagueness problems and cause unacceptable chilling of protected, issue-oriented political speech. It would, in other words, thwart speech debating the merits of government policies and addressing the public issues that are at stake in an election -- the very kind of speech that the First Amendment was written primarily to protect. [Lillian. R. BeVier, Campaign Finance "Reform" Proposals 16 (1997).]
In Buckley, the Court was faced with a series of constitutional challenges to the 1974 amendments to the FECA. Broadly speaking, the Court upheld the limitations which the FECA placed on "contributions" while it struck down or narrowly construed the "expenditure" restrictions on First Amendment grounds.
The Court's resolutions of two issues which arose in Buckley are particularly relevant to the legitimacy of the proposed regulations. Specifically, the Court held that Congress may neither (1) place monetary restrictions on "independent expenditures"(30) nor (2) infringe "issue advocacy." 424 U.S. at 51 and at 79-81. The intersection of these two constitutional rules largely defines the extent to which political speech may be regulated by government. That is, a disbursement for political speech is immune from regulation unless it falls outside of each of these protected categories. To be amenable to regulation, it must be (1) "coordinated" with a candidate (i.e., not "independent"); and (2) it must constitute "express advocacy" of the election of or defeat of a clearly identified candidate.(31) When either condition is missing, the disbursement is immune from regulation.
This dual requirement for regulation of campaign-related speech is a bulwark against government infringement of speech under the legal fiction that a given disbursement is a disguised "contribution" to a candidate. The rule that only `coordinated express advocacy' may be deemed a contribution is deeply rooted in the First Amendment and its policy of zealously protecting political speech.
This was evident in the Buckley Court's consideration of § 434(e) of the FECA, a provision which required persons making "contributions or expenditures" in excess of certain levels to report them. The Buckley Court found that the provision defining expenditures as "the use of money or other valuable assets `for the purpose of . . . influencing' the nomination or election of candidates for federal office" was unconstitutionally vague. Therefore, to obviate the danger that "fear of incurring [criminal] sanctions may deter those who seek to exercise protected First Amendment speech," the Court applied the "express advocacy" test to the phrase "for the purpose of . . . influencing" in the definitions for both "expenditure" and "contribution." For, as the Court noted, that phrase "shares the same potential for encompassing both issue discussion and advocacy of a political result [as did the phrase 'relative to' in § 608(e)(1)]." 424 U.S. at 79 (emphasis added). However, when limited to "express advocacy," § 434 (e) "does not reach all partisan discussion for it only requires disclosure of those expenditures that expressly advocate a particular election result." Id. at 80 (emphasis added).
Significantly, in both portions of the opinion in which it applied the "express advocacy" test, the Buckley Court noted the importance of precision and specificity where the regulation of speech is concerned. "The test is whether the language of [the statute or regulation] affords `the precision of regulation [that] must be the touchstone in an area so closely touching our most precious freedoms.'" Id. at 41. Or as the Court stated later in the opinion, "[w]here First Amendment rights are involved, an even `greater degree of specificity' is required." Id. at 77. Thus, it is evident that when it fashioned its definition of "express advocacy," the Court believed itself to be construing the provisions of the FECA precisely, i.e., with the degree of specificity commanded by the First Amendment.
In sum, under the Buckley definition of "express advocacy," disbursements for political purposes are accorded full First Amendment protection as long as they remain outside the narrowly-circumscribed category of "express advocacy." As the Supreme Court summarized, "[s]o long as persons and groups eschew expenditures that in express terms advocate the election of a clearly identified candidate, they are free to spend as much as they want to promote the candidate and his views." Id. at 45.
Thus, it is clear that the express advocacy test is a highly speech-protective judicial instrument, which is applicable even if the disbursement is "coordinated." Considering the vast scope of potential political speech, the "express advocacy" test allows legislative encroachment on a very tiny portion, only enough, in fact, to further Congress' compelling interest in avoiding the reality and appearance of corruption in the political process. In doing so, the test completely protects issue advocacy.
Government may not restrict issue advocacy whatsoever. Therefore, to the extent that the FEC's regulations and coordination theory infringe on issue advocacy, they must be rejected.
b. Government may not regulate "independent expenditures."
Independent expenditures, discussed in section II(a) supra, are not only the target of regulation by State legislators, State agencies, and State courts but also the FEC.
In Colorado Republican Federal Campaign Committee v. FEC, 116 S. Ct. 2309 (1996),(32) the Supreme Court considered the validity of a provision of the Federal Election Campaign Act which limited the amount of money that a political party could spend in support of a candidate. 2 U.S.C. § 441a. Under consideration were certain expenditures made by the Colorado Republican Party for media advertisements in opposition to the likely Democratic Senatorial candidate.
A central issue was whether the expenditure in that case (which was for an "advertising campaign") was in fact "independent" and thus, immune from limitation under the principles announced in Buckley, or whether it was "coordinated" and, thus constitutionally susceptible to limitation as a "contribution."(33) Writing for the plurality, Justice Breyer held, as a matter of constitutional law, that the expenditure for the Republican Party's advertising campaign was "independent." Id. at 2315.
In arriving at its decision regarding the "independence" of the expenditure, the Supreme Court plurality rejected the following "general" factors: (1) that it was the party's practice to coordinate "campaign strategy" with the candidate; (2) that the Republican Chairman was "as involved as he could be" with the individuals seeking the Republican nomination; and (3) that the Republican Chairman made available to the candidates "all of the assets of the party." Id.
The plurality noted that "[t]hese latter statements . . . are general descriptions of party practice. They do not refer to the advertising campaign at issue here or to its preparation." Id. (emphasis added). Thus, central to the analysis of the "independence" of an expenditure for constitutional purposes is that the activity which serves as the basis for the government's claim of "coordination" must relate to the expenditure itself. Generalized allegations that there was "involvement" between the group making the expenditure and the "campaign" are simply insufficient to turn an independent expenditure into one which is "coordinated." Colorado Republican thus stands for the proposition that, in order for expenditures to be considered "coordinated" as opposed to independent, specific expenditures must be actually coordinated with a candidate. The "constitutionally significant fact," the Court concluded, "is the lack of coordination between the candidate and the source of the expenditure." Id. at 2317.
The Colorado Republican Court rejected the FEC's arguments to the effect that the expenditure was "coordinated" despite the lack of "actual coordination." Id. at 2317. As the Court explained, merely re-labeling a constitutionally protected independent expenditure as a "contribution" is not constitutionally significant: "[a]n agency' simply calling an independent expenditure a 'coordinated expenditure' cannot (for constitutional purposes) make it one." Id. at 2319.
Colorado Republican followed the analytical framework of Buckley precisely. The Court explained that there is a "fundamental constitutional difference between money spent to advertise one's views independently of the candidate's campaign and money contributed to the candidate to be spent on his campaign." Id. at 2315. Thus, "independent expression of a political party's views is `core' First Amendment activity no less than is the independent expression of individuals, candidates, or other political committees." Id. at 2316. The Court therefore held that, as "core" political speech, independent expenditures by political parties may not be limited in the absence of a compelling governmental interest, specifically the threat of quid pro quo corruption. The Court held, however, that the threat of such corruption was alleviated by the "absence of prearrangement and coordination" of the expenditure with the candidate. Id. (citation omitted).
First in Buckley, later in FEC v. NCPAC, 470 U.S. 480 (1985), and most recently in Colorado Republican, the Supreme Court has made it abundantly clear that "independent expenditures" (no matter by whom) are to be afforded the utmost protection under the First Amendment. This rule means that such expenditures may not be subject to any monetary ceiling unless there is a sufficiently compelling interest, i.e., money will be expended in return for political favors. However, Colorado Republican makes clear that there is no potential for such corruption unless the expenditure at issue is actually and specifically coordinated with a candidate. Therefore, under the Supreme Court's consistent jurisprudence of "independent expenditures," disbursements for express advocacy communications absent actual coordination with a candidate concerning the specific expenditure are unconstitutional violations of the First Amendment.(34)
3. Regulation of "Coordinated Expenditures" Between Political Parties and Their Candidates
Although the Colorado Republican Party had "claimed that, in the special case of political parties, the First Amendment forbids congressional efforts to limit coordinated expenditures as well as independent expenditures," the Supreme Court declined to address the issue because it had not been fully addressed in the lower courts. Colorado Republican, at 2320-21. On remand, the District Court squarely addressed the question.
The Colorado Republican Party specifically argued that in the case of political parties "independent expenditures are 'unnatural' because such expenditures 'create an artificial separation of the party and its candidate,'" and that "[t]he need to be independent of a candidate and his or her campaign so as not to run afoul of the requirements for independent expenditures and fall within the regulations on coordinated expenditures dampens the ability to engage in the party's normal functions and imposes additional costs and burdens to promote the party message." FEC v. Colorado Republican Federal Campaign Committee, 1999 WL 86840 at *13 (D. Colo.) (February 18, 1999) ("Colorado Republican II"). Thus, it argues, limits on coordinated expenditures implicate core First Amendment rights because "[t]he message of the party and the message of the candidate are unified, and the party's dollars cannot be characterized as simply speech by proxy." Id.
The FEC countered that the "powerful party hierarchy, made so because of its ability to grant or withhold funding for unlimited coordinated expenditures, has the ability to exact a quid pro quo from a candidate who needs assistance from the party during his or her campaign." Id. at *14. Specifically, the FEC identified two types of corruption.
First, the FEC suggest[ed] that contributors to the party committees--individuals and PACs--are so powerful that they could force the party committee to compel a candidate to take a particular position. Second, parties themselves have agendas which they wish to pursue and will support only those candidates who agree to follow that agenda. [Id.]
"The Party Expenditure Provision," as the Supreme Court labeled 2 U.S.C.A. § 441a(d), limits contributions to candidates as follows:
(1) Notwithstanding any other provision of law with respect to limitations on expenditures or limitations on contributions, the national committee of a political party and a State committee of a political party, including any subordinate committee of a State committee, may make expenditures in connection with the general election campaign of candidates for Federal office, subject to the limitations contained in paragraphs (2) and (3) of this subsection.
* * * *
(3) The national committee of a political party, or a State committee of a political party, including any subordinate committee of a State committee, may not make any expenditure in connection with the general election campaign of a candidate for Federal office in a State who is affiliated with such party which exceeds--
(A) in the case of a candidate for election to the office of Senator, or of Representative from a State which is entitled to only one Representative, the greater of-- (i) 2 cents multiplied by the voting age of the population of the State (as certified under subsection (e) of this section); or (ii) $20,000; and
(B) in the case of a candidate for election to the office of Representative, Delegate, or Resident Commissioner in any other State, $10,000. [2 U.S.C.A. § 441a(d).]
The District Court began its analysis by noting
The only permissible purpose for limitations on campaign expenditures is to prevent corruption or the appearance thereof. "Corruption is a subversion of the political process. Elected officials are influenced to act contrary to their obligations of office by the prospect of financial gain to themselves or infusions of money into their campaigns. The hallmark of corruption is the financial quid pro quo: dollars for political favors." NCPAC, 470 U.S. at 497, 105 S.Ct. at 1468. The FEC's attempt to broaden the definition of corruption to include mere access is unsupported by precedent. [Colorado Republican II, at *12.]
Next, the District Court stated
"The First Amendment 'has its fullest and most urgent application to speech uttered during a campaign for political office.'" Political parties, and the central activities in which they engage, are a paradigm of the right to freedom of association as guaranteed by the First Amendment. FECA specifically defines a political party as "an association, committee, or organization which nominates a candidate for election to any Federal office whose name appears on the election ballot as the candidate of such association, committee, or organization." FECA makes special provisions for political parties, 2 U.S.C.A. § 441a(d), and establishes a special position for them in the statutory framework out of recognition that 'a vigorous party system [is] vital to American politics." A political party is an entity which (1) allows the individual voter to associate with others who share similar political beliefs, (2) identifies people who constitute the party, and (3) "select[s] a 'standard bearer who best represents the party's ideologies and preferences.'" [Id.]
The District Court then properly placed the burden on the FEC to "establish that limiting party coordinated expenditures is necessary to avoid corruption or the appearance thereof." Id.
The FEC failed to provide any evidence of either type of the corruption it claimed resulted from contributions from political parties to their candidates. With regard to the second type of corruption, the Court determined that it simply was "not corruption." Id. at *15. Specifically, the Court found that because of the limits placed on individual contributions to political parties, that it could not "conclude that party contributions are akin to large individual contribution." Id. Rather, "[t]he relationship between a party and a Member of Congress who represents that party is wholly different from the relationship between a private individual or corporation and a Member of Congress." Id. "Parties exist because of their success in electing representatives of their philosophy to legislative bodies." Id.
Thus, after Colorado Republican II, political parties may make unlimited coordinated expenditures with their own candidates.
CONCLUSION
The trampling of First Amendment freedoms in Iowa, Kansas, Michigan, Arkansas, North Carolina, Alaska, and FEC regulations is typical of what will happen if so-called campaign finance reform regulating issue advocacy is ever enacted.
The Nation stands at a crossroads. Either it will claim the heritage of free expression in the political arena bequeathed to us by the Founders, or it will relinquish that hard-won liberty in favor of a the long-rejected regime of political control of political speech. The First Amendment was enacted precisely to counter governmental controls on political speech. It is the first and foremost campaign reform. The First Amendment is not a loophole to be closed by misguided politicians who have forgotten the lessons of history.
SUMMARY OF RESUME
OF
JAMES BOPP, JR.
James Bopp, Jr. is an attorney with the law firm of Bopp, Coleson & Bostrom in Terre Haute, In. and with the law firm of Webster, Chamberlain & Bean in Washington, D.C. His law practice concentrates on first amendment cases regarding political free speech and free exercise of religion and constitutional law cases regarding pro-life issues. He represents numerous not-for-profit organizations, political action committees, and political party committees, including the National Right to Life Committee, Inc. and the Christian Coalition.
Mr. Bopp's extensive federal and state election law practice includes successful federal litigation striking five sets of Federal Election Commission regulations in cases including Faucher V. FEC, 928 F.2d 468 (1st Cir. 1991), Maine Right to Life Committee V. FEC, 98 F.3d 1 (1st Cir. 1996) and Minnesota Citizens Concerned for Life V. Federal Election Commission, 113 F.3d 129 (8th Cir. 1997). In addition, Bopp has successfully challenged state election laws in over a dozen states on free speech grounds, including winning the seminal cases of Day V. Holahan, 34 F.3d 1356 (8th Cir. 1994), and New Hampshire Right to Life Political Action Committee V. Gardner, 99 F.3d 8 (1st Cir. 1996). Finally, Bopp has successfully litigated several redistricting cases, including La Porte County Republican Central Committee V. Board of Commissioners, 43 F.3d 1126 (7th Cir. 1994).
Because of Bopp's expertise in election law, he has testified on campaign finance reform before the United States Senate Committee on Rules and Administration and before the Subcommittee on the Constitution of the United States House Judiciary Committee. Bopp has published a leading law review article on election law entitled The First Amendment Is Not A Loophole: Protecting Free Expression in the Election Campaign Context, 28 UWLA Law Rev. 1 (1997), and has published opinion pieces in The Washington Post and The Washington Times.
Mr. Bopp currently serves as General Counsel for the James Madison Center for Free Speech and as Chairman of the Election Law Subcommittee of the Free Speech and Election Law Practice Group of the Federalist Society.
1. The author thanks attorneys Richard E. Coleson, Robert J. Newmeyer, Paul R. Scholle, and Raeanna Moore of the law firm of Bopp, Coleson & Bostrom for research and writing assistance.
2. Throughout the article, note will be taken of cases in which the author and other members of the law firm of Bopp, Coleson & Bostrom are or have been engaged.
3. The James Madison Center for Free Speech has not received any federal grant, contract or subcontract within the preceding two fiscal years.
4. See, e.g., James Bopp, Jr., Testimony on Behalf of the Free Speech Coalition, Inc. Before the Committee on Rules and Administration, United States Senate (Mar. 13, 1996); Supplemental Testimony of James Bopp, Jr. Before the Committee on Rules and Administration, United States Senate (Mar. 22, 1996); James Bopp, Jr., Testimony on Behalf of National Right to Life Committee, Inc., Before the Subcommittee on the Constitution of the Committee on the Judiciary House of Representatives, United States Congress (September 18, 1997).
5. Some of the material below is adapted from the testimony and article cited.
6. "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or of the right of the people to peaceably assemble, and to petition the Government for a redress of grievances." U.S. Const. amend. I.
7. The Buckley Court also quoted approvingly the comments of the United States Court of Appeals for the District of Columbia, which it affirmed:
"Public discussion of public issues which also are campaign issues readily and often unavoidably draws in candidates and their positions, their voting records and other official conduct. Discussions of those issues, and as well more positive efforts to influence public opinion on them, tend naturally and inexorably to exert some influence on voting at elections." [Id. at 42 n.50 (quoting 171 U.S. App. D.C. 172, 226, 519 F.2d 821, 875 (D.C. Cir. 1975)).]
8. The several federal courts of appeal that have applied Buckley and MCFL have faithfully adhered to the "explicit" or "express" words of advocacy test according to its plain terms. See North Carolina Right To Life, Inc. v. Bartlett,* 168 F.3d 705, 712-13 (4th Cir. 1999) (affirming that definition of "political committee," which included organizations "the primary or incidental purpose of which is to support or oppose any candidate or . . . to influence or attempt to influence the result of an election," is unconstitutional); Virginia Soc'y For Human Life, Inc. v. Caldwell,* 152 F. 3d 268, 270 (4th Cir. 1998) (definition of "political committee," which included organizations that had a "purpose of influencing" elections, could not be narrowed by a federal court to include only groups that engage in express advocacy) ("VSHL"); Brownsburg Area Patrons Affecting Change v. Baldwin,* 137 F.3d 503, 505 (7th Cir. 1998) ("The Court [in Buckley] recognized the important First Amendment interest in protecting political speech, including discussions surrounding elections and candidates. . . . Because of the vital importance of protecting such speech, the Buckley court articulated what has become known as the 'express advocacy' test . . . .") (emphasis added); FEC v. Christian Action Network, Inc., 110 F.3d 1049, 1051 (4th Cir. 1997) (express advocacy "limited to . . . communications which literally include words which in and of themselves advocate the election or defeat of a candidate") ("CAN II"); Maine Right To Life Comm., Inc. v. FEC,* 914 F. Supp. 8, 12 (D. Me. 1996) ("What the Supreme Court did [in adopting the 'express advocacy' test] was draw a bright line that may err on the side of permitting things that affect the election process, but at all costs avoids restricting, in any way, discussion of public issues."), aff'd per curiam, 98 F.3d 1 (1st Cir. 1996) ("[W]e affirm for substantially the reasons set forth in the district court opinion.") ("MRLC"); Faucher v. FEC,* 928 F.2d 468, 472 (1st Cir. 1991) ("In our view, trying to discern when issue advocacy in a voter guide crosses the threshold and becomes express advocacy invites just the sort of constitutional questions the Court sought to avoid in adopting the bright-line express advocacy test in Buckley."); FEC v. Central Long Island Tax Reform Immediately Comm., 616 F.2d 45, 53 (2d Cir. 1980) (en banc) ("CLITRIM") (FEC's definition of "expressly advocating the election or defeat" effectively included "implied" advocacy" and was, therefore, "totally meritless."). In addition to Bartlett, VSHL, CAN II, MRLC, Faucher and CLITRIM, the federal district courts have overwhelmingly followed suit. See Kansans for Life, Inc. v. Gaede,* 1999 WL 115156, at *7-10 14-19 (D. Kan. Feb. 24, 1999); Iowa Right To Life Comm., Inc. v. Williams,* No. 4-98-CV-10399, slip. op. at 9 (S.D. Iowa Oct. 23, 1998) ("This Court cannot agree with defendants' position. The First and Fourth Circuit Courts of Appeals recently have rejected Furgatch's 'read as a whole' language--which would allow defendants to consider external factors such as the timing of the communications--in favor of the 'bright-line rule' requiring explicit or express words of advocacy set forth by the Supreme Court in Buckley and MCFL."); Right to Life of Mich., Inc. v. Miller,* 23 F. Supp.2d 766 (W.D. Mich. 1998) (regulation prohibiting corporate communications containing the "name or likeness of a candidate" within 45 days of an election facially overbroad); Planned Parenthood Affiliates of Mich., Inc. v. Miller, 21 F. Supp.2d 740 (E.D. Mich. 1998) (same); Right To Life of Dutchess County, Inc. v. FEC,* 6 F. Supp.2d 248 (S.D. N.Y. 1998) (FEC's contextual definition of "expressly advocating" facially overbroad); Clifton v. FEC,* 927 F. Supp. 493, 496 (D. Me. 1996), aff'd on other grounds, 114 F.3d 1309 (1st Cir. 1997) ("[T]he United States Supreme Court explicitly has narrowed FECA's very broad prohibition against corporate election-related spending to a prohibition on spending involving express advocacy of the election or defeat of a clearly identified candidate or candidates. . . . The Court has ruled that spending for issue advocacy, on the other hand, cannot be stopped."); FEC v. Christian Action Network, 894 F. Supp. 946 (W.D. Va. 1995), aff'd per curiam, 92 F.3d 1178 (4th Cir. 1996) ("By creating a bright-line [express advocacy] rule, the Court ensured, to the degree possible, that individuals would know at what point their political speech would become subject to governmental regulation."); FEC v. Survival Educ. Fund, Inc., 1994 WL 9658, at *3 (S.D. N.Y. Jan. 12, 1994), aff'd in part and rev'd in part on other grounds, 65 F.3d 285 (2d Cir. 1995) ("[E]xpressions of hostility to the positions of an official, implying that the official should not be reelected--even when the implication is quite clear--do not constitute the express advocacy . . . ."); FEC v. Colorado Republican Fed. Campaign Comm., 839 F. Supp. 1448, 1456 (D. Colo. 1993), rev'd 59 F.3d 1015 (10th Cir. 1995), vacated and remanded on other grounds, 116 S. Ct. 2309 (1996) ("Trying to determine whether the surrounding circumstances, coupled with the implications of the advertisement, constitute 'express advocacy' leads to the type of semantic dilemma which the [Supreme] Court sought to avoid by adopting the bright-line rule."); West Virginians For Life, Inc. v. Smith, 919 F. Supp. 954, 959 (S.D. W.Va. 1996) ("[Buckley and MCFL] adopted a bright-line rule for determining whether advocacy is express advocacy and therefore subject to regulation, or issue advocacy which may not be regulated."); FEC v. NOW, 713 F. Supp. 428 (1989) (solicitation letters, which criticized candidates, were not express advocacy); FEC v. AFSCME, 471 F. Supp. 315, 317 (D. D.C. 1979) ("[A]lthough the poster includes a clearly identified candidate and may have tended to influence voting, it contains communication on a public issue widely debated during the campaign. As such, it is the type of political speech which is protected from regulation. . . .").
*Denotes cases in which James Bopp, Jr. served as lead counsel for plaintiff.
9. James Bopp, Jr. served as lead counsel for plaintiffs.
10. James Bopp, Jr. served as lead counsel for the plaintiffs in this case.
11. James Bopp, Jr., served as lead counsel for plaintiffs.
12. James Bopp, Jr. served as lead counsel for plaintiffs Minnesota Citizens Concerned for Life, Inc. and Jacqueline A. Schwitz.
13. The Court also determined that IRLC was likely to succeed on the merits of its claim that 351 IAC 4.87 was unconstitutional, because it defined a political committee as including those political corporations that accept contributions of more than $500 per year, contrary to the Supreme Court's decision in MCFL. Williams, slip op. at 16.
14. The Kansas Campaign Finance Act requires a receipts and expenditures report by persons other than a candidate or a candidate committee, or party or political committee, regarding the funding of political advertisements when the advertisements are considered "contributions" for a certain candidate. K.S.A. 21-4150. If the advertisement "expressly advocates the nomination, election or defeat of a clearly identified candidate," then it is a "contribution" under K.S.A. 24-4143(e)(1)(B). The report must contain the name and address of each person from whom a contribution or in-kind contributions in excess of $50 was made. K.S.A. 24-4148(b)(2) & (8).
The statute further provides at 25-4143(h) that "expressly advocate" means:
"any communication which uses phrases including, but not limited to: (A) 'Vote for secretary of state'; (B) 'reelect your senator'; (C) 'support the democratic nominee'; (D) 'cast your ballot for the republican challenger for governor'; (E) 'Smith for senate'; (F) ' Bob Jones in '98'; (G) 'vote against Old Hickory'; (H) 'defeat' accompanied by a picture of one or more candidates; or (I) 'Smith's the one.'" [Kansans For Life, Inc. v. Gaede, 1999 WL 115156 *2-3 (D. Kansas, February 24, 1999).]
15. James Bopp, Jr., served as lead counsel for plaintiffs.
16. James Bopp, Jr., served as lead counsel for plaintiffs.
17. After Linane moved outside Arkansas, the District Court granted plaintiffs' motion to substitute David Sloan for Linane. ARLSPAC I, at 1235.
18. James Bopp, Jr. was lead counsel for plaintiffs.
19. James Bopp, Jr., served as lead counsel for plaintiffs.
20. Plaintiffs' later voluntarily dismissed this claim.
21. James Bopp, Jr., was lead counsel for plaintiffs.
22. James Bopp, Jr. filed an Amicus Curiae Brief in this case.
23. James Bopp, Jr., served as lead counsel for plaintiffs.
24. The District Court determined that NCRLPAC need only inform donors of its name and not tell them for whom the money will be used, and the State did not appeal that portion of the District Court's decision.
25. This provision was invalidated in Maine Right to Life Committee v. FEC, 914 F.Supp. 8 (D. Me 1996), aff'd, 98 F.3d 1 (1st Cir. 1996), but the FEC continues its attempts to enforce it because the rule has not been repealed.
26. 0For the purposes of clarity, the term "disbursement" will be used to denote the payment of money for a political communication. This term is preferable to the word "expenditure" because the latter is a legal term of art. Since the label "expenditure" carries with it certain legal consequences, its use can be misleading, particularly when the issue to be decided is whether a particular payment is an "expenditure" or a "contribution."
27. 0As will be explained, the FEC has a mistaken idea of its power to regulate disbursements for communications which do not "expressly advocate" the election or defeat of a clearly identified candidate. The FEC cannot regulate them merely by labeling them "contributions" (as opposed to "expenditures"). Rather, under Buckley, all disbursements for communications (whether deemed "expenditures" or "contributions") are protected by the "express advocacy" test. This is clear from the fact that the Buckley Court developed the "express advocacy" test to obviate the "ambiguity" of the phrase "for the purpose of . . . influencing" which appeared in the definitions of both "contributions" and "expenditures." Buckley v. Valeo, 424 U.S. 1, 78-79 (1976). Therefore, under Buckley, a disbursement for a communication is immune from regulation unless it constitutes "express advocacy." This is so whether or not it is coordinated with a candidate. Indeed, no disbursement for political speech can be regulated in the absence of a compelling governmental interest. As Buckley and its progeny make clear, there is no compelling interest in the regulation of issue advocacy. This follows ineluctably from the fact that issue advocacy does not result in the threat of quid pro quo corruption, the prevention of which is the only compelling interest for restricting campaign finances. Federal Election Commission v. National Conservative Political Action Committee, 470 U.S. 480, 496-97 (1985).
28. 0FEC v. AFSCME, 471 F. Supp. 315 (D.D.C. 1979); FEC v. CLITRIM, 616 F.2d 45 (2d Cir. 1980); FEC v. Machinists Non-Partisan Political League, 655 F.2d 380 (D.C. Cir. 1981); FEC v. Phillips Publishing, 517 F. Supp. 1308 (D.D.C 1981); FEC v. Massachusetts Citizens for Life, 107 S. Ct. 616 (1986); FEC v. NOW, 713 F. Supp. 428 (D.D.C. 1989); FEC v. Survival Education Fund, 65 F.3d 285 (2nd Cir. 1995); FEC v. Christian Action Network, 894 F. Supp. 946 (W.D. Va. 1995), aff'd, 92 F.3d 1178 (4th Cir. 1996); FEC v. GOPAC, 871 F. Supp. 1466, 917 F. Supp. 851 (D.D.C. 1994); FEC v. Colorado Republican Federal Campaign Committee, 116 S. Ct. 2309 (1996).
29. 011 CFR 114.4(b)(5), invalidated in Faucher v. FEC, 928 F.2d 468 (1st Cir. 1991); 11 CFR 100.22, invalidated in Maine Right to Life Committee v. FEC, 914 F. Supp 8 (D. Me. 1996), aff'd, 98 F.3d 1 (1st Cir. 1996); 11 CFR 114.4(c)(4) & (5), invalidated in Clifton v. Federal Election Commission, 927 F. Supp. 493 (D. Me. 1996).
30. 0An "independent expenditure" is a legal term of art which denotes a disbursement for an express advocacy communication which is not coordinated with a candidate or his campaign. See 2 U.S.C. § 431(17).
31. 0When a disbursement constitutes what might be called `coordinated express advocacy,' the Buckley Court reasoned that it is the functional equivalent of a "contribution" to the candidate whom it favors and, therefore, may be constitutionally limited to the same extent as direct financial contributions or "in-kind" contributions. See Buckley, 424 U.S. at 46-47 and n.53.
32. James Bopp, Jr., filed an Amicus Curiae Brief in this case.
33. 0The Colorado Republican Court made clear that the advertisement at issue was an independent expenditure, i.e., express advocacy. Therefore, it would have been regulable had the Court found that it was not "independent."
34. In Clifton v. Federal Election Commission, 927 F. Supp. 943 (D. Me. 1996), the District Court for the District of Maine (employing analysis similar to that subsequently used in Colorado Republican) invalidated a federal regulation which sought to treat "expenditures occurring after contact with a candidate" as "contributions" which, under the FECA, could be prohibited by corporations under 441b.