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Today, ads are usually held to the "express advocacy" test. Only ads containing express advocacy of the election or defeat of a federal candidate can be regulated as a campaign expenditure. Expenditures are reportable to the FEC, and cannot be made by corporations and labor unions out of general funds. Under new laws, as of November 6 corporations and unions will be prohibited from making "electioneering" communications. These are broadcast ads that refer to a federal candidate, are targeted to the relevant electorate, and that run within 60 days of a general, special, or runoff election, or within 30 days before a primary or binding caucus. If run outside that period, the advertisement would be subject to the old "express advocacy" test. Also as of November 6, state and local parties, and federal, state, or local candidates would need to fund any public communications referring to a federal candidate and "supporting or attacking" a federal candidate with money raised under federal restrictions. That is, no use of corporate or labor money, and individual gifts must follow federal contribution limits. Yet in administrative hearings to consider the FEC's draft rules implementing the new law, reformers pointedly dodged inquiries about what specific messages could be regulated. They demurred, saying that it would be unwise to engage in hypothetical inquiries. Fine. No hypotheticals. Let's look instead at how the new rules — as yet unreviewed by a court, by the way — would treat fact situations raised in prior litigation. Such an inquiry could shed light on the efficacy, and the scope, of these rules without engaging in the dreaded "hypothetical." In 1992, the Christian Action Network ran ads on television and in newspapers before the general election that told the viewer then-Governor Clinton's "vision for America includes job quotas for homosexuals, giving homosexuals special rights, [and] allowing homosexuals in the armed forces." It then asked "Is this your vision for a better America? For more information on traditional family values, contact the Christian Action Network." The court ruled on this matter in 1996 that the advertisement fell short of express advocacy, commenting that it believed "it would be inappropriate for us . . . to even inquire whether the identification of a candidate as pro homosexual constitutes advocacy for, or against, that candidate." Under today's rules, the answer would probably be that the television part of the expenditure was "electioneering" — it was close to the election, identified a federal candidate, and it matters not whether the message contains any "advocacy" good, bad or otherwise. The newspaper expenditure would remain unregulated — since it isn't a broadcast, and doesn't contain express advocacy, it would remain free political speech. What if a political party wanted to run the same ad? The rules for parties, which govern both broadcast and print communications, look for a reference to a federal candidate, and whether the communication "supports or attacks" a candidate. This is the precise problem articulated in the court's decision in this case. How should an agency decide if this is a message of support? Or an attack? Answering that question would require drawing conclusions about the intent of the group, and the ad's effect on voters. This process would be fraught with opportunities for bias, inconsistent application, and vagueness. Could the government just say that the message was either "support or attack," without concluding which one? This alternative transforms the "support or attack" rule into "seems to support and/or attack." If the government can't conclude without conjecture and invasive inquiry what the message is, they why should the ad be regulated at all? Similarly, in 1976, a union circulated a poster depicting Ford and Nixon in an embrace. Nixon wore a "Pardon me" button, and text related Ford's belief that Nixon was innocent. At the time, the court concluded that the poster contained no express advocacy. Today, the expenditure would not be "electioneering" simply because it was not a broadcast advertisement. If a political party produced the poster, the question would again rest on whether the communication was a "support or attack" of Ford, a conclusion that could change over time. In 1990, ACT-UP organized a boycott of Philip Morris because of its support for Jesse Helms. It encouraged gay bars and restaurants not to purchase Miller beer and other Philip Morris products, and ACT-UP members openly acknowledged that the boycott "stems from our opposition to Helms." Senator Helm's campaign filed a complaint, and the FEC investigated. The matter closed in 1994, not because of a lack of a legal basis to proceed, but because the investigation had grown stale and the ACT-UP chapters had disappeared. Under the new rules, an ACT-UP broadcast calling for a boycott of Philip Morris due to its support of Senator Helms would have been prohibited if run within 60 days of the general election. It would probably be permitted if run outside that period, since it is unlikely anyone could successfully argue that the call to boycott Philip Morris was "express advocacy." A newspaper ad or mail program with the same message would remain unregulated. Suppose a party committee wanted to organize a boycott of the opposition's supporter? In that case, it would depend on the interpretation of "support or attack." Does an attack on a candidate's supporter equal an attack on the candidate? Maybe. How many degrees of separation does it take to inoculate a speaker from enforcement risk.? One hopes fewer than six, or we're all in trouble. These examples from previous litigation demonstrate that the new rules will yield incoherent and unjustifiable results in the real world. Broadcast advertisement is subject to a different standard than mail or print messages. Corporations and unions ads follow an entirely different set of rules than candidate and party advertisements. These are not loopholes crafted by devious FEC commissioners. These are standards written into the legislation as sponsors promised other members they'd solved the issue advertising problem for them. — Allison Hayward is a campaign-finance attorney. She is a deputy counsel to the California Republican party, which submitted comments on the BCRA's regulations. |
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new rules governing campaign speech enacted in Shays-Meehan are soon to
create an incoherent mess. When campaign reformers promised to eliminate
sham issue ads, that goal resonated with some members of Congress otherwise
not inclined to support McCain and company. These members perhaps looked
forward to a day when they would no longer fear sneaky and unflattering
advertisements run by unfriendly elements in the electorate, like challengers.
