Testimony of

Glenn J. Moramarco

Senior Attorney, Brennan Center for Justice



Before the House Judiciary Committee's

Subcommittee on the Constitution

May 5, 1999



Mr. Chairman, I am honored to have been invited to testify before the Subcommittee concerning Congress' ability to regulate electioneering speech without infringing on the First Amendment right to engage in protected "issue advocacy."

By way of introduction, the Brennan Center for Justice at New York University School of Law is a nonpartisan institution devoted to scholarship, discourse, and action on issues of justice that were central to the jurisprudential legacy of Justice William J. Brennan Jr. We are guided by principles that were important to Justice Brennan -- a willingness to ask the hard questions and to reexamine old doctrine, an insistence on developing constitutional norms that make pragmatic sense, and an ardent insistence on protecting liberty. Justice Brennan did more than any Justice in the history of our nation to protect civil liberties -- and particularly freedom of speech. Given our namesake, we would like to think that we approach all issues, and particularly issues relating to the financing of campaigns, with a special sensitivity to concerns about free speech.

In the 1996 and 1998 federal elections, corporations, labor unions, political parties, and advocacy groups 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 issue facing this committee, how to draw a reasonable line that distinguishes between regulable electioneering speech and protected "issue advocacy," is as difficult as it is necessary. 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, from undermining the valid limitations placed by the law on 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 may restrict the sources from which speakers can raise their money -- to individuals, for example -- and Congress can limit the size of the contributions to a collective fund.

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 how much they spent and who supported their message.

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 to 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 the law defines it 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 everyone has become accustomed to thinking that it 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.

I do not believe that we are struck with a constitutional doctrine that nominally allows us to place restrictions on electioneering, but nevertheless allows individuals and groups to accomplish the same result through naked subterfuge. The federal courts are not so irrational that they 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 both of 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 narrow and sufficiently precise. 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 two possible approaches which, in my view, should survive court challenge. One is an objective approach based on series of measurable factors. The second is a subjective approach based on self-disclosure.

Several of the proposals currently before Congress, including the Shays-Meehan Bill in the House and the McCain-Feingold Bill in the Senate, adopt an objective approach based on a series of measurable factors. Under this type of an 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. 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 which appear in certain specified media (such as radio, television, cable, newspapers, etc.). Finally, 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.

A second approach that has not yet been tried, but which is promising, is a self-disclosure system. Let me describe what I have in mind. The regulatory regime begins with a set of objective factors such as those outlined above -- ads that name a candidate within a certain number of days of an election, that are broadcast in certain specified media, and that meet a certain dollar threshold. If all of the factors are present, the Federal Election Commission then requires the sponsor of the ad to file a disclosure form stating either that the ad was intended to influence the election or defeat of the named candidate, or that it was not intended (even in part) to influence the election or defeat of the named candidate. As a general rule, the FEC would accept a sponsor's designation of their own ad as an "issue ad," rather than an electioneering ad. However, the FEC would be given the authority to challenge a sponsor's designation, with the government bearing the burden of proof. False designations would be fined in an amount up to three times the amount paid for the offending advertisement.

What does this self-disclosure system accomplish? Assuming a reasonable degree of truthful compliance, the self-disclosure system allows the government to accurately distinguish between those ads which truly are intended to influence a candidate's election or defeat and those which are not -- which is, after all, the sole objective of the law. Although others may be skeptical, my suspicion is that most advocacy groups which spend substantial amounts of money on sham "issue ads" that praise or denounce a particular candidate would be unwilling to publicly state that they did not intend to influence the election or defeat of that named candidate. Advocacy groups will no longer be able to tout their success at targeting specific candidates for election or defeat, while simultaneously claiming that they are engaged only in "issue advocacy" because their ads failed to use "magic words." Moreover, corporate and union sponsors can be entirely prohibited from using general treasury funds for self-disclosed electioneering ads. However, advocacy groups that are truly engaged solely in "issue advocacy" can continue with their activities in an unregulated manner.

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."