'Issue Ads' and Common Sense

During the April 25 argument, Solicitor General Paul Clement and Washington lawyer Seth Waxman (who was President Clinton's last solicitor general) argued that these ads were clearly designed to get people to vote against Feingold and, thus, were properly banned as "electioneering communications." That's plausible. On the other side, campaign finance expert James Bopp Jr. of Indiana argued that the ads' immediate purpose was to get senators to stop filibustering judicial nominees. That's plausible, too.

Bopp also said that if the law banned these ads as "electioneering," then the law must be unconstitutional. The smart money seems to be betting that the Court will so rule, 5-4. Some of its more conservative justices leaned to the anti-regulation side, with Justice Antonin Scalia declaring: "This is the First Amendment. We don't make people guess whether their speech is going to be allowed by Big Brother or not." Meanwhile, the four more-liberal justices took the pro-regulation side, with Justice Stephen Breyer declaring, "If you open the gates and say corporations and rich givers or whatever can contribute [to candidates] by writing these ads and paying for them ... forget the rule that says corporations can't contribute."

And so it went, with liberals stressing "electioneering" and conservatives stressing "issue." It was all rather tiresome. Of course the anti-abortion group and its members wanted Feingold to stop filibustering. And of course they wanted viewers to vote against him. Why shouldn't they? "Is that called democracy?" Justice Anthony Kennedy helpfully asked Bopp at one point.

Instead of this sterile debate over how much electioneering can be slipped between the lines of an issue ad, the justices should resolve this case as suggested by Kathleen Sullivan, a distinguished professor and former dean of Stanford Law School, in a brilliantly logical friend-of-the-court brief on behalf of Wisconsin Right to Life.

"Nonprofit advocacy groups funded by individuals are readily distinguishable from for-profit corporations funded by general treasuries," Sullivan's brief explains. And "speech by nonprofit advocacy groups on behalf of their members does not 'corrupt' candidates or 'distort' the political marketplace. Instead, it is Section 203 [of McCain-Feingold] that distorts, leaving wealthy individuals and corporate media conglomerates [which the law exempts] unfettered in their pre-election broadcast advocacy, and inducing sophisticated corporations to turn to alternatives such as PACs, while thwarting speech by individuals of moderate means who have banded together in grassroots groups to express their views."

Exactly right. Sullivan's brief also shows in compelling detail how McCain-Feingold "effectively forecloses ... small, nonprofit, grassroots advocacy groups altogether from running pre-election broadcast issue ads." The safety valves touted by regulators are largely illusory. Although nonprofits that meet certain FEC criteria are exempt from regulation, those criteria are virtually impossible to meet; the "daunting legal, financial, and administrative difficulties of forming a PAC are prohibitive for most small grassroots advocacy groups"; and suing for advance judicial approval is "expensive, protracted, and uncertain."

Sullivan's brief also quotes a book that seems to support her approach: "Active liberty is particularly at risk when law restricts speech directly related to the shaping of public opinion, for example, speech that takes place in areas related to politics and policy-making by elected officials."

The book is Active Liberty. The author is Stephen Breyer.