Testimony of E. Joshua Rosenkranz
President and CEO, Brennan Center for Justice at NYU School of Law
Before the Senate Committee On Rules and Administration Campaign Reform: Citizen Participation
April 26, 2000
Good morning, Mr. Chairman and Members of the Committee.
Thank you for the privilege of testifying at today’s hearing on Citizen Participation, the fifth in this Committee’s series of hearings on Campaign Reform. I am President and CEO of the Brennan Center for Justice at New York University School of Law. The Brennan Center unites thinkers and advocates in pursuit of a vision of inclusive and effective democracy. Our mission is to develop and im
plement an innovative, nonpartisan agenda of scholarship, public education, and legal action that promotes equality and human dignity, while safeguarding fundamental freedoms.
In just the past few months, the Brennan Center has played a central role in two significant developments affecting the conduct of campaigns in the United States. The Brennan Center litigated Nixon v. Shrink Missouri Government PAC, in which the Supreme Court reaffirmed the fundamental principles and analysis of Buckley v. Valeo, upholding contribution limits and providing this Committee and Congress with clear guidance on how to legislate in this area. Deborah Goldberg, the Brennan Center’s lead lawyer in the case, previously testified before this Committee on the constitutional implications of the Supreme Court’s ruling. Second, the Brennan Center successfully represented your colleague, Senator John McCain, in his challenge to New York’s Republican primary ballot access rules, producing the first presidential primary in the history of the state where every serious candidate was on the ballot.
Today, this Committee addresses the critically important subject of issue advocacy and citizen participation in politics and campaigns, another facet of campaign reform that has been a top priority for the Brennan Center. The central issue at this hearing is the ability of Congress to regulate citizen participation, specifically electioneering speech, without infringing the First Amendment right to engage in protected “issue advocacy.” I am guided in my comments here today by the legacy of my institution’s namesake. Justice Brennan did more than any Justice in the history of our nation to protect civil liberties—and particularly freedom of speech. Therefore, the Brennan Center approaches all issues, and particularly issues relating to the financing of campaigns, with a special sensitivity to concerns about free speech.
In the last two federal election cycles, political parties, advocacy groups, corporations, and labor unions spent hundreds of millions of dollars for advertisements that were wholly unregulated by the federal government because, the sponsors of the ads claimed, they were engaged in “issue advocacy” rather than electioneering. However, rather than educating the public broadly about issues, the typical sham “issue ad” mentioned a single candidate, targeted the segment of the public eligible to vote for that candidate, began to run when an election was imminent, and ended abruptly on Election Day.
The pattern that was set in 1996 and 1998 is repeating itself today. Only a few months ago, we saw a group calling itself “Republicans for Clean Air” sponsor $2.5 million worth of ads supporting George W. Bush on the eve of the crucial New York, California, and Ohio Republican presidential primaries. Who are “Republicans for Clean Air”? It turns out that they are Texas billionaire Charles Wyly and his brother. We learned this not from any disclosure forms filed with the Federal Election Commission by Republicans for Clean Air, but instead only through the dogged efforts of various investigative reporters. No one disputes the constitutional right of wealthy individuals like the Wylys to engage in independent expenditures in support of a candidate of their choice, but the desire to engage in blatant electioneering, as the Wyly ads did, without disclosure to the American people, is another matter. The American people believe that someone who spends $2.5 million of his own money in support of a presidential candidate may well want or expect something in return. Unless there is full public disclosure of these types of activities, we cannot fulfill the compelling government interest, repeatedly recognized by the Supreme Court as legitimate, of combating corruption and the appearance of corruption.
The issue facing this committee, then, is how to draw a reasonable line that distinguishes between regulable electioneering speech and protected “issue advocacy.” We need to protect true “issue advocacy”—communications that address an issue of national or local political importance. Examples of true “issue advocacy” include the Harry and Louise ads run by the Health Insurance Association of America in opposition to President Clinton’s national health care reform proposal, or the anti-NAFTA ads run by labor unions in late 1993, while that legislation was pending. However, we cannot permit sham “issue ads,” which do nothing beyond advocating the election or defeat of a named candidate, to undermine the valid limitations placed by law on the flow of money into electioneering activity.
Let me begin with some non-controversial legal principles. Under current law, there is no doubt that it is permissible for Congress to draw some line distinguishing electioneering speech from “issue advocacy.” If speech falls on the “electioneering” side of the line, three consequences follow:
1. Disclosure: Congress may require the speaker—whether a PAC or a corporation or a party or an individual or a candidate—to disclose the sources of the money and the nature of the expenditures in support of the speech.
2. Source restrictions: Congress may absolutely bar certain speakers from spending money on electioneering. Congress may preclude corporations and unions from electioneering (or, more accurately, from spending money to engage in electioneering). Congress may limit participation to individuals and PACs. Congress may prohibit foreigners from electioneering.
3. Fundraising restrictions: Congress can limit the size of the contributions to a collective fund, in addition to restricting the sources from which speakers can raise their money.
Do these restrictions infringe on speech and privacy rights? Of course they do. Wherever one draws the electioneering line, there are certain words that corporations and unions are banned from uttering. There are certain messages that can be funded only by individuals or by groups that amass individual contributions in discrete amounts. These regulations necessarily reduce the sheer amount of money that can be spent on certain messages. And these regulations require speakers to reveal certain information, such as whom they supported.
Even though these regulations infringe on speech, they are indisputably constitutional. Since 1907, corporations have been barred from electioneering; since 1947 those restrictions have been extended to labor unions; and since 1974, the law has restricted the size of contributions that can be made in support of speech funded by a group. The Supreme Court has upheld all of these restrictions on electioneering.
Of course, a great deal rides on what qualifies as “electioneering.” If the government defines the concept too broadly, it could end up restricting speech on issues of public importance that happens to have an influence on elections—a result that is antithetical to the First Amendment. If electioneering is defined too narrowly, we may as well not bother having campaign finance laws, because all players could readily find a way to influence elections in a direct way, making a mockery of the law.
That is where we find ourselves today. We are now in a world where some people behave as if a message is not electioneering unless the speaker utters a “magic word”—like “vote for,” “vote against,” “elect,” or “defeat.” So all players—corporations, unions, foreigners, and parties—engage in an open strategy of trying to influence elections by running or paying for ads that look, smell, waddle, and quack like campaign ads, but are just missing the magic words. They use money from prohibited sources, they raise it in prohibited amounts, and they close their books to public scrutiny. In many cases, their stated goal is to influence the election. They brag about their success in influencing the election, and yet they claim the First Amendment protects their right to engage in any speech, even with that clearly proscribable motive.
Now, for the first time, we have hard social science data that describes the impact of an overly narrow and increasingly irrelevant definition of electioneering on the conduct of congressional campaigns. An academic study conducted by the Brennan Center for Justice, with a grant from the Pew Charitable Trusts, tracked all of the political advertising conducted during 1998 in the nation’s 75 largest media markets, which together cover more than 80 percent of the country. Every advertisement received a unique code, and was tracked by, among other things, time of airing, sponsor, and whether the coders believed that the ad was intended primarily to address an issue or instead to elect or defeat a particular candidate. Though the completed study is not yet available, some broad conclusions can be drawn regarding questions central to understanding the use of television advertising in political campaigns.
The Brennan Center’s study reviewed over 300,000 televised airings of political advertisements broadcast in 1998. Close to 60,000 of these televised airings were so-called “issue ads” run by political parties and interest groups which avoided words of express advocacy and, therefore, were not reported to the Federal Election Commission. The political parties dominated this category of non-candidate, unreported advertising, sponsoring about two-thirds (65 percent) of all issue ads. Each of these ads was individually reviewed for content, including whether the ad’s purpose was to “provide information about or urge action on a bill or issue,” or whether it was to “generate support or opposition for a particular candidate.”
All of the party ads were found to be aimed at generating support or opposition to a candidate. Proponents of the status quo tell us that issue advocacy is to be equated with political participation by citizens at the grassroots level, and that campaign finance reform will sacrifice this cornerstone of our democracy. Now that empirical data has replaced anecdote, we know this to be false. In fact, two thirds of televised issue ads turn out to be party sponsored ads supporting or opposing a particular candidate.
The domination of televised issue advocacy by the major political parties, and the parties’ use of issue ads to support and oppose specific candidates, can be explained by the complete failure of the “magic words” test to capture electioneering. Only 4 percent of ads run by candidates themselves, ads which indisputably are electioneering, ever use express words of advocacy such as “elect” or “defeat.” Put differently, under the accepted standard for distinguishing electioneering from issue advocacy, 96 percent of the television ads run by congressional candidates in 1998 were not electioneering.
Comparing the text of two ads, attached as Appendix 1, from the 1998 Kentucky Senate race between Jim Bunning and Scotty Baesler sharply illustrates the consequences of retaining a regulatory standard that has no relevance in the real world of campaigning. The first ad, sponsored by Democrat Scotty Baesler, attacks Jim Bunning for supporting a tax loophole for billionaires, allowing them to “renounce their U.S. citizenship to avoid paying taxes.” The second ad, sponsored by the Kentucky Democratic Party, also attacks Bunning for voting for a tax loophole that lets “billionaires renounce their citizenship to avoid paying U.S. taxes.” Both ads ran in the final weeks of the campaign. Neither ad used words of express advocacy. Yet the ad sponsored by Baesler is treated as electioneering because it came from a candidate, while the ad sponsored by the Democratic Party passes for an issue ad. To bypass campaign finance laws and avoid limitations on sources and sums of funding, the Kentucky Democratic Party was required to forego the use of words of express advocacy in its ad against Jim Bunning. The cost of foregoing that direct appeal to voters? Absolutely nothing.
We are not stuck with a constitutional doctrine that nominally allows us to place restrictions on electioneering, but nevertheless allows individuals and groups to avoid any restriction through naked subterfuge. The Supreme Court is not so irrational that it will acknowledge the government’s power to regulate in an area while simultaneously imposing rules that make all regulation unworkable.
When the Supreme Court first devised the “express advocacy” test in Buckley, it did so in the context of a poorly drafted statute (the Federal Election Campaign Act) whose definition of regulable electioneering contained problems of both vagueness and overbreadth. Under First Amendment “void for vagueness” jurisprudence, the government cannot punish someone without providing a sufficiently precise description of what conduct is legal and what is illegal. A vague or imprecise definition of electioneering might serve to “chill” some political speakers who, although they desire to engage in discussions of political issues, may be afraid that their speech could be construed as electioneering. The Buckley Court found that the regulated conduct, which included expenditures “relative to a clearly identified candidate” and “for the purpose of influencing an election” were not sufficiently precise to provide the certainty necessary for those wishing to engage in political speech.
Similarly, the overbreadth doctrine in First Amendment jurisprudence is concerned with a regulation that, however precise, sweeps too broadly and reaches constitutionally protected speech. The Buckley Court was concerned that the Federal Election Campaign Act’s attempt to regulate any expenditure that is done “for the purpose of influencing a federal election” or that is “relative to a clearly identified candidate” could encompass not only direct electioneering, but also protected speech on issues of public importance.
The Court chose to save the Federal Election Campaign Act from invalidation by reading it very narrowly. However, the Court never said that no legislature could ever devise alternate language that would be both sufficiently precise and sufficiently narrow. The decision to narrowly construe a statute to save it from potential vagueness and overbreadth problems does not prevent further legislative refinements that eliminate those problems. The key for Congress is to draw a line that distinguishes between regulable electioneering and protected “issue advocacy” in a way that minimizes the vagueness and overbreadth concerns identified by the Court.
How is this accomplished? Let me outline an objective approach, based on a series of measurable factors, that, in my view, should survive court challenge.
Several proposals that have been considered by Congress, including the Shays-Meehan bill in the House and versions of the McCain-Feingold bill in the Senate prior to its most recent amendment, adopt an objective bright-line approach based on a series of measurable factors. Under this bright-line approach, ads typically are subject to regulatory control if the ad mentions a specific candidate within a certain limited time period prior to an election.
The bright-line approach has frequently been criticized by reform opponents with the argument that it would unduly restrict much legitimate issue advocacy. With the Brennan Center’s academic study of television advertising in 1998, we now have empirical data describing how the bright-line approach would have affected political advertising, had such a test been in effect during the last congressional election. The results of the study demonstrate, quite starkly, that a bright-line 60 days test is remarkably accurate in separating true issue ads from sham issue ads. Just 7 percent of ads categorized as genuine issue advocacy would have been affected by this approach, versus 82 percent of ads categorized as electioneering. With solid empirical data of this type, Congress can be confident that the major campaign finance reform proposals currently before it do not inhibit true issue advocacy.
This is not to say that those interested in affording maximum protection to First Amendment values cannot improve on the bright line approach. To make the statute more protective of First Amendment values, it is useful to specify a dollar threshold (protecting all spending below, say, $10,000) and to limit the application to ads that appear in certain specified media (such as radio, television, cable, newspapers, etc.). Additionally, in order to further guard against both vagueness and overbreadth challenges, the objective criteria specified in the statute, rather than being a hard and fast rule, can be limited to creating only a presumption of regulable electioneering. The use of a rebuttable presumption can provide a safety net for the unusual cases that detractors of these laws are so fond of inventing such as ads denouncing President Johnson during the height of the Vietnam War. In the real world in which we all live, however, ads run close to an election that name candidates are almost invariably regulable electioneering ads.
In sum, it is constitutionally permissible for Congress to enact legislation that regulates ads that are intended to influence the electoral outcome of particular candidates, as long as the legislation does not unduly sweep within its reach ads that are intended to discuss issues only. The “magic words” test clearly does not accomplish this permissible objective in an acceptable manner. The Supreme Court does not purposely permit government to regulate in an area while imposing rules that make all attempts at regulation worthless. Congress has the power to pass legislation which remedies the vagueness and overbreadth problems that plagued the Federal Election Campaign Act by providing a better method for differentiating between electioneering and true “issue advocacy.”