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What is stunning about last week’s Supreme Court decision to uphold the Bipartisan Campaign Reform Act (BCRA) is not so much the immediate result — one for which parties, candidates, nonprofits, and other players had already planned. It is the Court’s reasoning in McConnell v. Federal Election Commission for expanding the power of Congress to regulate political speech. That reasoning throws open the door to new threats against fundamental First Amendment freedoms. Three aspects of the Dec. 10 McConnell decision particularly stand out: By treating the distinction between “issue advocacy” and “express advocacy” as a matter of statutory interpretation rather than a constitutional imperative, the Court has left no logical limit on Congress’ ability to outlaw communications that criticize its members and are financed by corporations, unions, or groups. The Court has paved the way for state legislatures to pass similar restrictions on communications referring to state officials — restrictions that had previously been ruled unconstitutional based on principles the Court has now rejected. Finally, the Court’s use of the “anti-circumvention” rationale to uphold many of BCRA’s soft money provisions apparently gives Congress and state legislatures the go-ahead to regulate otherwise-protected speech and expression. DON’T ADVOCATE Since the Court’s landmark decision in Buckley v. Valeo (1976), the analysis of restrictions on communications by corporations, unions, and groups that refer to federal elected officials and candidates has been thought to turn on the distinction between issue advocacy and express advocacy. The Buckley Court said that a provision limiting spending by any group “relative to a clearly identified candidate” applied only to those communications that explicitly advocate for or against the election of a candidate — i.e., that use words such as “vote for” or “defeat.” Such a narrowing construction was necessary, said the Court, to avoid stepping on constitutionally protected “discussion of issues and candidates.” Based on Buckley and later decisions, lower courts and the political community recognized a clear rule for communications about elected officials and candidates: Corporations, unions, and groups could use their own funds for a communication, made independently of any candidate or party committee, as long as the communication avoided express advocacy. This framework gave rise to the phenomenon of “issue advertising” — communications that might praise or criticize federal officials or candidates, but that avoided such direct language as “elect” or “defeat.” In passing BCRA, Congress went a crucial step further: It limited independent issue ads by forbidding any organization — other than a federally registered and regulated political action committee — from using its own funds for “electioneering communication.” That term is essentially defined as any broadcast communication referencing a federal candidate that runs 30 days before a primary or 60 days before a general election in which the candidate is running. Now the McConnell Court has upheld the electioneering provision. In so doing, the Court said that the distinction between issue and express advocacy is not constitutionally mandated. The express advocacy standard, the Court explained, had been adopted only to avoid problems of vagueness and overbreadth. Therefore, a statute that was neither vague nor overbroad would not “be required to toe the same express advocacy line.” Since the Court found nothing unclear about the BCRA electioneering ban, there was no reason to apply the limits of express advocacy. The problem with this reasoning is that it is now hard to see what, if any, limit the Court would be willing to impose on any effort by Congress or state legislatures to restrict communications by organizations attempting to influence elected officials. Several dissenting justices noted that while BCRA’s target was “sham” issue ads (which are designed to push candidates by skirting the express advocacy rules), the Court’s reasoning would also allow Congress to ban “true” issue ads during the 30- and 60-day periods. But the reasoning actually extends far beyond that. Under the Court’s analysis, what is to stop Congress from enacting a law banning a public interest group — be it NARAL Pro-Choice America, the National Rifle Association, the Sierra Club, or AARP — from using its own funds to send mail or broadcast ads mentioning a federal candidate one year before an election? Or two years? Such a law would create no more vagueness than BCRA’s electioneering provision. Indeed, because the Court’s analysis turns solely on the clarity of the standard — not on the reasonableness of 30 days, 60 days, or any other particular time period in relation to the governmental interests served — there is no reason to believe such a law would not pass muster with the McConnell Court. Yet such a law could effectively make it a crime for any group to urge voters to contact a member of Congress to support or oppose any bill. As Justice Antonin Scalia noted in his dissent, members of Congress hate critical issue ads and welcomed the opportunity to try to outlaw them. Now members can do that and more. Congress could effectively outlaw most grass-roots lobbying by even long-established advocacy groups using their own funds. No doubt, the prospect of never hearing from constituents or being pressed by organized interests would be appealing to some politicians. But it is surely difficult to square such a result with the First Amendment. REVISIT STATE LAWS Defenders of the Court’s decision argue that such grim warnings are unwarranted: It is unlikely that Congress will revisit campaign finance reform any time soon, and thus the scenario envisioned is highly improbable. State and local efforts to regulate political speech suggest otherwise. In recent years, laws or administrative rules in Iowa, Kansas, Michigan, Virginia, and elsewhere have attempted to regulate any group paying for various types of communications that refer to candidates. Rightly, these efforts have been struck down by the lower federal courts, as well as some state courts, on the grounds that the First Amendment forbids regulation of independent communications unless the communication “expressly advocates” the election or defeat of a candidate. No longer. Under McConnell, a state legislature or city council is free to ban independent-group spending to pay for communications that criticize legislators, as long as the ban clearly defines the types of regulated communications and the time periods during which they cannot be run. We should therefore expect to see the re-enactment of state laws previously struck down and the reintroduction of state and local initiatives imposing restrictions on issue ads. We should also anticipate a new wave of state efforts to regulate political speech. State legislators can now be on the “right” side of the “reform” issue while imposing draconian limits on the ability of organized interest groups to hold politicians accountable for their actions or to get voters to weigh in on pending legislation. It is difficult to see why the prospect of ever-greater regulation along these lines will not prove tempting to state politicians. It is equally difficult to see what constitutional line the post- McConnell Court will draw to curb such regulation. GO AROUND THE FIRST Also dangerous to First Amendment freedoms is the Court’s reasoning in upholding BCRA’s soft money restrictions. These restrictions are forebodingly vague and impossibly complex. In addition to banning the raising and spending of soft money by party committees for campaign purposes, they also regulate parties’ raising other funds for state and local candidates, charitable and nonprofit organizations, and the like. State parties can spend state-regulated funds for a specified portion of “get out the vote” contacts as long as they don’t mention a federal candidate. But for such purposes, parties can raise only $10,000 per contributor, and the state-regulated funds must be raised directly by the party committee that spends them, and even the matching hard money portion may not have been transferred from or raised by any other party committee. And it goes on and on. In McConnell, the Court found that many of these provisions did not have to be justified under any standard of First Amendment scrutiny. Instead, they were permissible because they were a means of preventing circumvention of other restrictions that had been found constitutional. In their dissents, Chief Justice William Rehnquist and Justice Anthony Kennedy argued to the contrary that the provision itself must be justifiable under the traditional analysis of campaign finance regulation — i.e., that the particular restriction serves the government’s interest in preventing corruption or the appearance of corruption. But the majority rejected that view. This broad application of the anti-circumvention analysis invites potentially vast regulation of political and other speech by Congress and state legislatures. As the chief justice noted in his dissent, “All political speech that is not sifted through federal regulation circumvents the regulatory scheme to some degree or another, and thus by the Court’s standard would be a ‘loophole’ in the current system.” Under BCRA, for example, an incorporated nonprofit civil rights group can use its own funds to run television ads criticizing President George W. Bush’s civil rights record only if the ads don’t run within 30 days of a Republican primary or the Republican National Convention, or within 60 days of the November 2004 general election. But the group can put that same message on a piece of direct mail right up to the day of the election. Well, who is to say that’s not a “loophole” that allows the group’s big donors to curry favor with the Democratic Party or its nominee, a loophole that under McConnell may be closed by a future statute or regulation? And once that loophole is closed, what if the group funds protests against the president’s policies the week before the election? Wouldn’t it be possible to ban those, too, to prevent circumvention of the now-constitutional 60-day restriction? The McConnell Court has conferred on Congress the power to trample on First Amendment rights not only to prevent actual abuses, but also to bar hypothetical ones. The fear that “reform” groups, and their supporters in Congress and state legislatures, will move to close more such loopholes is not a paranoid fantasy. Indeed, the same day the Court handed down its opinion in McConnell, one leading public advocacy group, Common Cause, announced that the decision “means that additional, meaningful campaign finance reforms can now follow.” It’s true that all the key players in the American political system may well learn how to function under BCRA. Even so, the Supreme Court’s decision upholding the statute threatens to lead us down a dangerous new path of repression. Joseph E. Sandler and Neil P. Reiff are partners in D.C.’s Sandler, Reiff & Young and co-authors of the book Bipartisan Campaign Reform Act of 2002: Law and Explanation. Sandler and Reiff counsel Democratic candidates, party committees, PACs, nonprofit groups, donors, and others. Larry S. Gibson is of counsel to Baltimore’s Shapiro Sher Guinot & Sandler, an affiliated firm. Gibson teaches election law at the University of Maryland School of Law, served as state chairman of the 1992 Clinton/Gore campaign in Maryland, and has managed other campaigns. They can be reached at [email protected], [email protected], and [email protected], respectively.

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