Comment to NYS Board of Elections on Draft Independent Expenditure Regulations

Comments of

The Brennan Center for Justice at NYU School of Law

On

Draft Regulation § 6200.10, Relating to the Disclosure of Independent Expenditures

Submitted to

The New York State Board of Elections

April 9, 2012

On behalf of the Brennan Center for Justice at NYU School of Law,[1] we write to comment on draft regulation § 6200.10 (the “draft rule”), relating to the disclosure of independent expenditures.[2]

We commend the Board of Elections for its efforts to ensure that New York voters have access to the information they need to make informed decisions in the political marketplace.  Because we believe that the draft rule as currently formulated would not require disclosure to the extent required under New York law, however, we urge the Board to revise it to capture all express advocacy. 

In particular, we urge the Board to add a second prong to the draft rule’s definition of “express advocacy” that is similar to the federal express advocacy definition found at 11 C.F.R. § 100.22(b).  Consistent with relevant Supreme Court precedent, the federal regulation provides that express advocacy includes not only speech containing the so-called “magic words” referenced in the draft rule,[3] but also speech that “could only be interpreted by a reasonable person as containing advocacy of the election or defeat of one or more clearly identified candidate(s).”[4]  The Board should revise the draft rule to contain a similar provision.

*          *          *

The draft rule was prompted by the Public Integrity Reform Act of 2011, part of which directed the Board to promulgate regulations “setting forth and implementing the requirements under existing law for individuals, organizations, corporations, political committees, or any other entities to disclose independent expenditures made for advertisements or any other type of advocacy that expressly identifies a political candidate or ballot proposal.”[5]  The regulations must require “such disclosure to the fullest extent of the law.”[6]

The Board’s response to this directive, draft regulation § 6200.10, is designed to provide for the disclosure of independent expenditures.  The draft rule defines independent expenditures as expenditures made in support or opposition of a candidate that “expressly advocate for the election or defeat of a candidate” and that the candidate has not authorized, suggested, fostered, or cooperated with in any way.[7]  In so doing, the draft rule reflects the distinction between express advocacy and issue advocacy recognized by the Supreme Court in Buckley v. Valeo[8] and other cases, and acknowledged by the Third Department of the New York Supreme Court’s Appellate Division in Klepper v. Christian Coalition of N.Y. Inc.[9]

Subsection (b)(2) of the draft rule, however, limits the definition of “express advocacy” to communications that use Buckley’s so-called “magic words”—words like “vote, oppose, support, elect, defeat, or reject.”[10]  In so doing, subsection (b)(2) of the draft rule suggests that communications lacking these words cannot be considered express advocacy.  This is wrong. 

Successive Supreme Court decisions have made clear that Buckley’s magic words standard was an endpoint of statutory interpretation, not a constitutional command.  Moreover, these cases have recognized that express advocacy encompasses not only speech containing the magic words, but also communications which are functionally indistinguishable from the magic words, and can be interpreted only as an appeal to vote for or against.  Because the Supreme Court has left no doubt that express advocacy encompasses more than the magic words, and because the Public Integrity Reform Act requires that the Board’s regulation mandate disclosure of express advocacy “to the fullest extent of the law,” the Board should amend the draft rule.  The New York law which the draft rule seeks to implement requires that independent expenditures be disclosed if they contain express advocacy—whether they include magic words or not.

U.S. Supreme Court Precedent Endorses Disclosure of Independent Expenditures Beyond “Magic Words” Express Advocacy

The U.S. Supreme Court has endorsed the disclosure of independent expenditures beyond “magic words” express advocacy.  Since Buckley, the Court has blessed disclosure of expenditures that are the functional equivalent of express advocacy in its McConnell,[11] Wisconsin Right to Life,[12] and Citizens United[13] opinions.  All these cases reflected the recognition that speech which is susceptible of no reasonable interpretation other than as an appeal to vote for or against is considered express advocacy, not issue advocacy—even if it does not use the magic words.

Examining the breadth of what is considered express advocacy begins with Buckley.  There, the Court was tasked with deciding the constitutionality of an expenditure limit which provided that “[n]o person may make any expenditure . . . relative to a clearly identified candidate during a calendar year which, when added to all other expenditures made by such person during the year advocating the election or defeat of such candidate, exceeds $1,000.”[14]  Because the term “relative to” was thought to be vague, in an exercise of statutory interpretation, the Court limited the statute to “apply only to expenditures for communications that in express terms advocate the election or defeat of a clearly identified candidate.”[15]  It was on this basis that the Court listed the magic words of express advocacy in a footnote.[16]

Since Buckley, however, courts have made clear that the regulation of independent expenditures can extend beyond magic words express advocacy, particularly in the disclosure context.  Eleven years after Buckley, in FEC v. Furgatch, the Ninth Circuit observed that “speech need not include any of the magic words listed in Buckley to be express advocacy under the Act, but it must, when read as a whole, and with limited reference to external events, be susceptible of no other reasonable interpretation but as an exhortation to vote for or against a specific candidate.”[17]  The Federal Election Commission later codified the Furgatch standard in subpart (b) of its regulation defining “expressly advocating.”[18]

The Supreme Court has confirmed that express advocacy is not limited to magic words.  In examining the constitutionality of the Bipartisan Campaign Reform Act’s electioneering communications[19] provision in McConnell, the Court explicitly disclaimed the idea that magic words are constitutionally required for regulation to be permissible, saying that the Buckley “express advocacy restriction was an endpoint of statutory interpretation, not a first principle of constitutional law.”[20]

The McConnell Court went on to explain that limiting disclosure to only the Buckley magic words is not only not constitutionally required, it is also unwise as a matter of policy—and entirely ineffective at combating corruption.  As the Court noted, “the unmistakable lesson from the record . . . is that Buckley’s magic-words requirement is functionally meaningless.”[21]  Spenders can easily evade the magic words, while still making it absolutely clear that they are attempting to influence the election.[22]  Buckley’s magic words approach to express advocacy, the McConnell Court noted, was ineffective and “ha[d] not aided the legislative effort to combat real or apparent corruption.”[23]

Were the draft rule put in place without further modification to capture communications susceptible of no interpretation other than as an appeal to vote for or against, it too would fail to meaningfully address the interests it purports to advance.

In WRTL, the Court again considered what speech functions as express advocacy, and endorsed a standard like that in subpart (b) of the FEC’s express advocacy regulation.  Chief Justice Roberts explained that “an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”[24]  He went on to specifically refute the objection voiced by Justice Scalia that the functional equivalent of express advocacy test was vague, explaining that the test was objective and satisfied “the imperative for clarity in this area.”[25]

In Citizens United, the Court applied the functional equivalent of express advocacy test as part of deciding whether Hillary: The Movie constituted an electioneering communication.[26]  Were the film not an electioneering communication, the Court could have decided the case on the narrower ground that BCRA’s corporate electioneering communication[27] ban did not apply,[28] and could have avoided the larger constitutional question of whether corporate electioneering communications can be banned.  Instead, the Court found that Hillary: The Movie satisfied the functional equivalent of express advocacy test, in spite of the absence of magic words in the film.[29]  That the Court successfully applied the test further proves that the test is not unconstitutionally vague.

Notably, the Citizens United Court recognized that disclosure provisions can be constitutionally applied even to communications that go beyond magic words and the functional equivalent of express advocacy.  Because disclosure is less burdensome than other speech regulations, and indeed, does “not prevent anyone from speaking,”[30] the Court specifically “reject[ed] Citizens United’s contention that the disclosure requirements must be limited to speech that is the functional equivalent of express advocacy,” and made clear that compelling disclosure of issue advocacy was constitutionally permissible.[31]  Because the New York statute on which the draft rule is based has been interpreted as requiring disclosure of independent expenditures containing express advocacy, but not issue advocacy, it is the province of the legislature, and not the Board, to adopt disclosure rules for issue advocacy.[32]  Plainly, however, the Board is obligated to adopt rules requiring disclosure for the full range of express advocacy—including communications that lack the magic words.

The Buckley magic words standard, found in a footnote of an opinion from nearly four decades ago, is not constitutionally required.  Using such a standard will thwart any efforts at achieving effective disclosure, and will open a loophole in disclosure that is readily exploited, dramatically undermining the ability to promote political transparency.  Adopting a broader definition containing a provision like subpart (b) of the federal definition would solve this problem.  The Supreme Court has clearly and unquestionably explained that disclosure can apply to speech that goes beyond the Buckley magic words, including the functional equivalent of express advocacy—and, indeed, even beyond—and that requiring such disclosure presents no constitutional concerns.

New York Law Requires Disclosure of Independent Expenditures Beyond “Magic Words” Express Advocacy

Independent expenditures must be disclosed under New York law, and entities which satisfy the definition of “political committee” are subject to the state’s reporting and disclosure requirements.[33]  “Political committee” is defined, in relevant part, as

any corporation aiding or promoting and any committee, political club or combination of one or more persons operating or co-operating to aid or to promote the success or defeat of a political party or principle, or of any ballot proposal; or to aid or take part in the election or defeat of a candidate for public office . . . but nothing in this article shall apply to any committee or organization for the discussion or advancement of political questions or principles without connection with any vote . . . .[34]

Recently, the New York Legislature reaffirmed in the Public Integrity Reform Act of 2011 the requirement that independent expenditures must be disclosed.

The state board of elections shall . . . issue regulations setting forth and implementing the requirements under existing law for individuals, organizations, corporations, political committees, or any other entities to disclose independent expenditures made for advertisements or any other type of advocacy that expressly identifies a political candidate or ballot proposal. Such regulations shall require such disclosure to the fullest extent of the law.[35]

As explained above, it is not constitutionally required to restrict the definition of “independent expenditure” to magic words express advocacy.  As a result, adding this restriction to the disclosure regime would violate the command of the New York Legislature to “require such disclosure to the fullest extent of the law,” unless there was an independent reason to deviate from the constitutionally permissible standard.  There is none.

Case law interpreting New York’s disclosure law has found that it applies to express advocacy rather than issue advocacy—but this distinction does not limit disclosure of express advocacy to only speech containing magic words.  In Klepper v. Christian Coalition of New York Inc.,[36] the Third Department issued a per curiam opinion affirming the dismissal of a facial constitutional challenge to N.Y. Elec. Law § 14–100(1).  The challengers had argued that the law unconstitutionally regulated issue advocacy.  The Court had little trouble dismissing the contention, reasoning that because the law contains a savings clause with an explicit exemption for issue advocacy, it required disclosure only of express advocacy.  Thus, the court found “no merit” in the facial challenge.[37]

To be sure, the Klepper court pointed out that N.Y. Elec. Law § 14–100(1) “specifically exempts issue advocacy . . . by providing that ‘nothing in this article shall apply to any committee or organization for the discussion or advancement of political questions or principles without connection with any vote . . . .’”[38]  Hence, because the New York statute specifically exempts issue advocacy from regulation, the Board correctly omitted issue ads from its proposed regulations, even though regulating them would be constitutionally permissible if the legislature required it.

But the Klepper court had no reason whatsoever to examine the contours of what constitutes express advocacy—and it did not do so.  Instead, the court said only that “Issue advocacy is protected by the First Amendment and includes communications that discuss an organization’s views on issues endorsed by a political candidate or party without expressly advocating the election of that candidate or party (see, Buckley v. Valeo, 424 U.S. 1, 41–44).”[39] Klepper cited Buckley for the distinction between issue and express advocacy—not for the proposition that only speech with magic words can be considered express advocacy.  Indeed, Klepper did not even mention Buckley’s magic words.  Klepper provides no basis for concluding that New York law only allows for the regulation of magic words express advocacy.

Nor is there any other reason to limit the express advocacy that must be disclosed under New York law to that containing magic words.  The statute regulates entities which operate “to aid or take part in the election or defeat of a candidate for public office.”[40]  The functional equivalent of express advocacy clearly falls within this definition.  As noted, the additional standard we urge the Board to adopt, modeled after the federal rule,[41] would capture speech that “is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”[42]  If the advocacy is “an appeal to vote for or against a specific candidate” this undoubtedly constitutes aiding or taking part in an election or defeat of a candidate for public office.  Thus, the functional equivalent of express advocacy falls squarely within the New York statute’s language.

Consequently, in order for the draft rule to comply with the statutory command that independent expenditures be disclosed “to the fullest extent of the law,” the Board should amend the current draft to contain a second prong, modeled after 11 C.F.R. § 100.22(b), which captures speech that lacks the magic words but can only be interpreted by a reasonable person as advocating the election or defeat of one or more clearly identified candidate(s).   

We thank the Board for the opportunity to submit these comments.  We would be glad to answer any questions the Board might have as it moves to finalize the regulations under development. 

Respectfully submitted,

[1] The Brennan Center is a non-partisan public policy and law institute that focuses on the fundamental issues of democracy and justice. The Center’s Money and Politics project works to reduce the real and perceived influence of special interest money on our democratic values. The opinions expressed in this letter are only those of the Brennan Center and do not necessarily reflect the opinions of NYU School of Law.

[2] N.Y. Comp. Codes R. & Regs. tit. 9, § 6200.10 (proposed Jan. 21, 2012) [hereinafter Draft § 6200.10].

[3] Draft § 6200.10(b)(2).

[4] 11 C.F.R. § 100.22(b).

[5] 2011 N.Y. Laws ch. 399, pt. E, § 1.

[6] Id.

[7] Draft § 6200.10(b)(1).

[8] 424 U.S. 1 (1976).

[9] 259 A.D.2d 926 (N.Y. App. Div., 3d Dep’t 1999).

[10] Draft § 6200.10(b)(2). See also Buckley, 424 U.S. at 44 n.52 (“This 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.’”).

[11] McConnell v. FEC, 540 U.S. 93 (2003).

[12] FEC v. Wis. Right to Life, Inc., 551 U.S. 449 (2007).

[13] Citizens United v. FEC, 130 S. Ct. 876 (2010).

[14] Buckley, 424 U.S. at 39 (emphasis added).

[15] Buckley, 424 U.S. at 44. See also McConnell, 540 U.S. at 190.

[16] “This 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.’” Buckley, 424 U.S. at 44 n.52.

[17] FEC v. Furgatch, 807 F.2d 857, 864 (9th Cir. 1987) (emphasis added). 

[18] 11 C.F.R. § 100.22(b).

[19] Under federal law, an “electioneering communication” is a broadcast, cable, or satellite communication that clearly identifies a candidate for federal office, aired within 60 days of the general election or 30 days of a primary election, and that is targeted to an audience of a sufficient size. 2 U.S.C. § 434(f)(3)(A). See also McConnell, 540 U.S. at 194.

[20] McConnell, 540 U.S. at 190. See also WRTL, 551 U.S. at 474 n.7 (explaining that Buckley did not reflect “a constitutional test”). 

[21] McConnell, 540 U.S. at 193.

[22] Id.

[23] Id. at 193–94.  Notably, the McConnell Court found that it was constitutionally permissible to require disclosure of issue advocacy as well as express advocacy, however the latter term is interpreted.  It noted that the First Amendment does not “erect[] a rigid barrier between express advocacy and so-called issue advocacy.”Id. at 193. 

[24] WRTL, 551 U.S. at 469–70.

[25] Id. at 474 n.7 (“Justice Scalia thinks our test impermissibly vague. As should be evident, we agree with Justice Scalia on the imperative for clarity in this area; that is why our test affords protection unless an ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”). See also Citizens United, 130 S. Ct. at 895 (“[T]his Court in WRTL adopted an objective ‘appeal to vote’ test for determining whether a communication was the functional equivalent of express advocacy.”).

[26] See Citizens United, 130 S. Ct. at 888.  Electioneering communications are any broadcast, cable or satellite communication that refers to a clearly identified federal candidate; is publicly distributed by a television station, radio station, cable television system or satellite system for a fee; and is distributed within 60 days prior to a general election or 30 days prior to a primary election for federal office. 

[27] 2 U.S.C. § 441b.

[28] See Citizens United, 130 S. Ct. at 889–90.

[29] See id. (lacking any discussion of the presence of Buckley magic words).

[30] Id. at 914 (citation and internal quotation marks omitted).

[31] Id. at 915.

[32] The legislature should require reasonable disclosure of issue advocacy, but debates over whether and how to do so are beyond the scope of these comments.

[33] See N.Y. Elec. Law § 14–102(1).

[34] Id. § 14–100(1) (emphasis added).

[35] 2011 N.Y. Laws ch. 399, pt. E, § 1 (emphasis added).

[36] 258 A.D.2d 926 (N.Y. App. Div., 3d Dep’t 1999).

[37] Id. at 927

[38] Id.

[39] Id.

[40] N.Y. Elec. Law § 14–100(1).

[41] The federal regulations that contain the two-pronged definition of express advocacy that we urge the Board to adopt were recently upheld. See Real Truth About Obama, Inc. v. FEC, 796 F. Supp. 2d 736, 746–50 (E.D. Va. 2011), appeal docketed, No. 11–1760 (4th Cir. July 21, 2011).

[42] WRTL, 551 U.S. at 469–70.