Suppressing Political Speech?

Thomas E. Mann

Opponents of campaign finance reform enacted in recent years have regularly proclaimed that reform bans political speech. Commentary welcoming the recent Supreme Court decision on campaign finance uses such inflammatory rhetoric as “speech police,” speech suppression,” and “unfree speech.” It reminds me of the old Marx Brothers line, “Who are you going to believe, me or your own eyes?”

By virtually every indicator available – broadcast ads run by candidates, parties and groups; dollars raised and spent; the diversity of views expressed over the airwaves, in print, and on the Internet; and the resources devoted to grassroots, face-to-face campaigning — political speech was alive and well during the 2004 and 2006 elections. American election campaigns conducted since the enactment of the Bipartisan Campaign Reform Act of 2002 (BCRA) richly registered the values, beliefs and interests of a very large and heterogeneous society.

Free political speech in this country is guaranteed by a powerful First Amendment, a sharp contrast with many other democracies where paid campaign broadcast ads are prohibited, expenditures by parties and candidates limited, and independent expenditures by outside groups banned. Yet serious analysts (including Washington Post columnists David Broder, Robert Samuelson, and George F. Will) have argued that the Supreme Court in Federal Election Commission v. Wisconsin Right to Life, Inc. (WRTL), properly weakened a reign of censorship by effectively striking down one pillar of BCRA. That is preposterous.

The Roberts Court decision gutted a good faith effort by Congress to put some enforcement teeth in a 60-year old law that prohibits the use of corporate and union general treasury funds for expenditures in federal elections. (A ban on direct corporate contributions in federal elections was enacted in 1907.) The 1947 law was undermined starting in the 1996 election cycle as corporations and unions found a huge loophole and used their treasuries to fund campaign ads that avoided express words of election advocacy or defeat, thereby earning them a safe legal harbor and the moniker “sham issue ads.” The ads ran close to elections, attacked specific candidates, and often barely mentioned issues.

Congress attempted to deal with this evasion with a bright-line test as a supplement to the express advocacy standard articulated in Buckley. They created a new category of “electioneering communications,” defined as broadcast ads that mention a candidate, are geographically targeted on the candidate’s constituency, and run 60 days before a federal general election or 30 days before a primary. If corporations or unions want to fund such ads, they must do so with a voluntary political action committee (PAC).

A swath of empirical evidence available to Congress and the courts confirmed that virtually all of the ads meeting this definition were indeed campaign ads. No member of the Supreme Court that in 2003 upheld the constitutionality of BCRA (including the four justices in dissent) contested this summary of the evidence. But the Court did allow for as-applied challenges to the law based on pure grassroots lobbying and issue advocacy.

The problem for critics of BCRA was that they couldn’t come up with many convincing real-life examples of pure issue advocacy ads broadcast before enactment of the law that would not have been permitted had it been in force. The nonprofit organizations that challenged the constitutionality of the law had not themselves run ads that would have inappropriately been caught up in the web of the electioneering communication provision. In other words, their charge of speech suppression was entirely theoretical, with no connection to actual issue and lobbying campaigns. While the legislation was under consideration, the ACLU ran a radio electioneering communication in Speaker Dennis Hastert’s district, one that failed the laugh test and was found by a federal district court judge to have been manufactured specifically to give ACLU standing as a plaintiff in the litigation.

After the 2003 McConnell v. FEC decision, campaign finance critics scrambled to put together a test case to bring an as-applied challenge since no real ones were available. Attorney James Bopp, Jr. searched nationally for groups that would be willing to run an appropriate ad and eventually struck pay dirt in Maine and Wisconsin.

Chief Justice Roberts and Justice Alito were perfectly comfortable ignoring the manufactured nature of the ad under consideration and discarding the empirical record assembled by Congress, thereby opening a path to the obliteration of the electioneering communication provision of BCRA. The Roberts Court could instead have crafted a narrow exemption for WRTL, one based on its nonprofit status or grassroots lobbying, without undercutting this pillar of the law. Instead, they took seriously the melodramatic cries of political speech suppression, overlooked the embarrassing absence of real-life evidence of issue advocacy speech that would have been or has been suppressed by BCRA, and opened the floodgates for a flagrant nullification of settled law restricting the use of corporations and unions in federal elections.

Once again, the rest of the democratic world must look upon us with utter bewilderment.