First Amendment Controversies, part II: The future of the Bipartisan Campaign Reform Act

By David Watkins

A few weeks ago Laura McKenna wrote about some controversial exceptions regarding the 1st amendment as it applies to freedom of the press. I'm following up today with a quick note about another ongoing first amendment controversy regarding political speech.

You've probably noticed the ubiquitous "I'm so-and-so and I approved this message" at the end of candidate radio and television advertisements. This is one of the many consequences of the Bipartisan Campaign Reform Act of 2002, more commonly known as"McCain-Feingold" after its somewhat unlikely lead sponsors in the Senate. The purpose here is to make clearer and more obvious the distinction between a candidate's own words and message and other political messages. The fight over this bill was particularly intense in the Republican party, where many Republicans' opposition to the core ideas of this bill was particularly strong (McCain's championing of campaign finance reform is a significant contributing factor in his reputation as a "maverick" in the Senate).The bill almost immediately produced a legal challenge from Kentucky Senator Mitch McConnell. McConnell was following the precedent set by Jim Buckley, a congressmen who sued over a campaign finance bill in the 1970's.

In that case (Buckley vs. Valeo) the court upheld the law's restriction on individual contributions to political candidates. However, the court also ruled that spending money to attempt to influence the outcome of elections is a constitutionally protected act of political speech. In the BRCA, the phenomenon known as "issue ads" were not directly prohibited, but they were further regulated. Defined as "electioneering communications," these ads were now subject to numerous restrictions to limit their coordination with campaigns and impact on elections. The proximity of third party ads naming candidates were restricted, as were the entities permitted to fund them (corporate and union sponsorship of such ads, for instance, were restricted). McConnell was less successful than Buckley; the vast majority of the key provisions of the BRCA were upheld in the 2003 decision

However: the status quo is precarious. For one thing, the majority in McConnell vs. FEC was a bare 5-4 majority, and included the no-retired Sandra Day O'Connor. Her replacement, Samuel Alito, is much more likely to side with those who find these restrictions unconstitutional. In fact, a new case in which the BRCA's constitutionality was questioned was recently argued before the Supreme Court. The case involves the question of restrictions on the distribution of a 90 minute anti-Hillary Clinton documentary, and whether it could be distributed. The government's lawyers are arguing that the ability to restrict campaign advocacy materials extends beyond simple advertisements:

Several of the court’s more conservative justices reacted with incredulity to a series of answers from a government lawyer about the scope of Congressional authorityto limit political speech. The lawyer, Malcolm L. Stewart, said Congress has the power to ban political books, signs and Internet videos, if they are paid for by corporations and distributed not long before an election.

Mr. Stewart added that there was no difference in principle between the 90-minute documentary about Mrs. Clinton, “Hillary: The Movie,” and a 30-second television advertisement.

Justice Anthony M. Kennedysaid the government’s uncompromising position could have dire consequences for the McCain-Feingold law....

“Hillary: The Movie,” a documentary with elements of polemic and advocacy journalism, was produced by Citizens United, a conservative nonprofit corporation. It was released during the Democratic presidential primaries last year, and a lower court said it could not be broadcast within 30 days of those elections.

(full story here)

We'll have to wait for the decision to come down, but based on oral arguments it seems possible that the legal interpretation of the relationship between protected political speech and political advocacy in campaigns may change again. But whatever the court decides in this case, the controversy isn't going away. There are a number of difficult questions swirling around this debate, including: What is the relationship between 1st amendment protected political speech, and money spent to disseminate that message, and the strategic targeting of those messages for elections? Should money spent of the dissemination of speech be subject to more regulation than the speech itself? Should proximity matter? If we allow money spent on political speech to go largely unregulated on first amendment grounds, will the political ideas and perspectives of those without much money be crowded out?

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