'Issue Ads' and Common Sense

Supreme Court justices seemed to be missing the point during oral arguments over curbs that the McCain-Feingold campaign finance law imposes on free speech.

Eight Supreme Court justices spent an hour on April 25 arguing with three lawyers and one another about the constitutionality of the federal regulation governing political advertising by nonprofit advocacy corporations. But all nine justices and all three lawyers missed what, I respectfully submit, should be the point of the case. They should be focusing on how Congress rigged the McCain-Feingold campaign finance law to protect its own members from criticism by their constituents.

In a nutshell, the problem with the Court's approach to the 2002 law's ban on so-called sham issue ads by nonprofit advocacy corporations is that the justices are focusing on the word "corporations" when they should be focusing on "nonprofit."

A typical issue ad might say something like "tell Senator Jones to stop filibustering judicial nominees," or "tell Senator Jones to vote for reproductive choice." Groups paying to air such ads almost always want the targeted lawmaker to vote as urged or to be defeated in the next election—or both. Seeking to determine which purpose predominates—the focus of the current debate—is a mug's game.

McCain-Feingold's ban on such issue ads has been touted as necessary to keep big, bad corporations and labor unions from pouring money into election campaigns. Corporations and unions have long been banned from doing this directly, through contributions to candidates, and should not be allowed to do it indirectly either, the argument goes.

So far, so good. It would distort the democratic process to allow Fortune 500 CEOs and union bosses to spend large sums of stockholders' and members' money to support candidates whom the stockholders and members might not choose to support. There is no First Amendment right to spend someone else's money on electioneering ads.

But Congress also swept into its regulatory net nonprofit, grassroots advocacy groups such as the Sierra Club, the National Rifle Association, the American Civil Liberties Union, and groups supporting or opposing abortion rights. Almost all such groups find it necessary to incorporate for liability-limitation and other reasons. And most accept donations from business corporations. But they pose no real risk of pouring Big Business and union money into election campaigns. (They would be in big trouble with the Internal Revenue Service if they did.) When these groups seek to run broadcast ads, their purpose is to pool the resources of like-minded members to participate in local or national political discourse. The First Amendment calls that sort of thing "the freedom of speech, [and] the right of the people ... to petition the government for redress of grievances."

So why did Congress trash these groups' freedoms of speech and association? Why threaten them with criminal prosecution if they dare criticize any federal candidate in a broadcast ad near Election Day?

The reason is that Congress managed to smuggle into a supposed restriction on political spending by Big Business and unions a provision that was carefully designed to insulate lawmakers from criticism by ordinary citizens.

"This bill ... is about slowing political advertising and making sure the flow of ads criticizing us by groups of our constituents does not continue to permeate the airwaves," Sen. Maria Cantwell, D-Wash., said on the Senate floor during the McCain-Feingold debate, echoing the views of many colleagues. Actually, that's not quite the way the senator put it. But it's pretty close; I edited out only her spin. Cross out the eight words that I italicized, substitute "negative attack ads by outside interest groups," and you've got Cantwell's exact language.

The critical distinction between nonprofit advocacy corporations and Big Business corporations went unmentioned during the April 25 oral argument before the Court. Rather, the focus was on the inescapably elusive distinction between broadcast ads designed to help or hurt political candidates, which all corporations and unions are barred from buying (except through costly and cumbersome political action committees), and ads designed to influence incumbents' votes on pending issues, which all corporations are theoretically free to buy in unlimited amounts.

Except that no corporation or union is really free to buy issue ads—not if they so much as mention the name of any congressional or presidential candidate during blackout periods that cover large parts of every election year.

The McCain-Feingold law bans any corporation or labor union from buying "electioneering" ads, defined to include any broadcast ads that name any federal candidate and are aired within 60 days of a general election or 30 days of a primary in the candidate's district or state. In practice, this blackout period spans much of the map of the United States during large portions of the political calendar, because there are so many primary elections in different states on different dates.

In the case now before the Court, Wisconsin Right to Life sought in 2004 to run three television ads criticizing a Senate filibuster against President Bush's judicial nominees and asking viewers to urge the state's two Democratic senators to give the nominees up-or-down votes. One of the senators, Russell Feingold, was running for re-election; the other, Herb Kohl, was not. The ads were to run less than 60 days before the November election but did not mention the election or suggest whether Feingold should be re-elected. The Federal Election Commission ruled that these ads would be barred as electioneering communications. The group sued to test the constitutionality of this ban.

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.