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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Weekly Comment

The Remand in WRTL

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February 7, 2006

The Supreme Court has sent back to the district court Wisconsin Right to Life, Inc. v. Federal Election Commission, which involves an "as applied" challenge to the source-of-funds restriction in the Bipartisan Campaign Reform Act (BCRA), often called the "McCain-Feingold" law after its chief Senate sponsors. By "as applied," attorneys mean whether the law is valid in its application to a particular set of facts, in contrast to whether the law "on its face" is generally valid as written.

Some observers say that this remand was merely a delay tactic on the part of the pre-Alito Court, allowing the case to come back after the newest Justice has had a chance to settle in a bit. That observation is likely accurate regarding the remand's motivation, but it does not accurately reflect the remand's inevitable implications. The remand will cause the district court to confront a particularly thorny First Amendment question, which could have been avoided if the Supreme Court had ruled that "as applied" challenges to the source-of-funding restriction are categorically meritless - and one which the Supreme Court itself will need to tackle after the district court wrestles with it.

The thorny question is this: which messages that mention a candidate are constitutionally entitled to be exempt from a generally permissible prohibition on the use of corporate or union money for messages that mention a candidate within a specified time period before the election? BCRA prohibits corporate and union funding of messages that mention a candidate when broadcast to voters within 60 days of a general election, or 30 days of a primary. In a previous 5-4 ruling, McConnell v. FEC (2003), where now-retired Justice O'Connor cast a truly "swing" vote (having taken a contrary position in a 1990 case Austin v. Michigan Chamber of Commerce), the Supreme Court upheld as a general matter BCRA's time-defined constraint on corporate and union spending. The McConnell majority did so even recognizing that most messages within the scope of this time-defined constraint would not expressly advocate for the candidate's election or defeat.

Indeed, the predicate of the McConnell ruling was that "express advocacy" was an artificially narrow category that failed to capture the vast bulk of broadcast advertisements intended - and understood by voters - to support or oppose a candidate's campaign. Consequently, according to the McConnell majority, it was permissible for Congress to enact a rigid, time-defined rule that encompasses all broadcasts to voters that mention a candidate regardless of whatever specific content the broadcast might have. Now the Court says that it is necessary to carve out of Congress's bright-line, time-defined rule a category of candidate-identifying messages that are constitutionally immune from the prohibition on corporate or union funding.

Presumably, the point of this carve-out is to protect messages that, although mentioning a candidate shortly before the election, do not actually concern the race. The classic example is a broadcast message that urges a Member of Congress to vote a particular way on a pending piece of legislation and encourages his constituents to contact him to let him know that they share this view:

"Senator Voinovich says he hasn't yet decided whether to support President Bush's tax cuts. Well, he shouldn't, because they'll cause deficits to soar, saddling all our grandchildren with debts that will require even larger taxes to repay. For the sake of our grandkids, tell Senator Voinovich that we are willing to sacrifice a little now."

The fact that Senator Voinovich is running for reelection at the same time that the tax cut plan is up for a vote in the Senate may be entirely irrelevant to the sponsors of this message. The sponsors may support his reelection no matter how he votes on the tax cut; even if he disappoints them on this issue, they may prefer him overall. Or they may be dead set against his reelection no matter what, but still hope that they can convince him to do the right thing on this one issue. Or the sponsors simply make take no position on his reelection; especially if this message is sponsored by an institutional entity devoted to fiscal responsibility, the organization may be non-partisan and leave it to its individual members to decide which candidates to support.

This kind of message may be called "grassroots lobbying," because it lobbies the Member of Congress on a piece of pending legislation by rustling up support for its position among grassroots constituents. The claim is that such grassroots lobbying should not be ensnared by BCRA's source-of-funding restriction just because Congress may vote on the bill while primary, or even a general, election campaign is under way. Consequently, the plaintiff in WRtL has made a carve-out for grassroots lobbying the focus of its case.

But a message that mentions a candidate need not be grassroots lobbying in order to be unrelated to the upcoming election. Consider this hypothetical:

"A bipartisan delegation from the Senate Foreign Relations Committee, including Republican Chair Richard Lugar and Democratic Ranking Member Joseph Biden, have just returned from China , where they've made a real breakthrough in efforts to enlist China's support for a new nuclear nonproliferation treaty. President Bush should back this bipartisan effort by announcing that he'll sign any treaty that adopts the Lugar-Biden plan. The future of world peace, and the safety of all Americans for generations to come, is too important to let this opportunity slip away."

This message is not a campaign advertisement just because Senator Lugar (but not Senator Biden) is up for reelection this year. Nor is it grassroots lobbying - at least not lobbying directed at Congress. Yet if the Constitution exempts grassroots lobbying from BCRA's source-of-funding restriction, then the Constitution presumably exempts this message as well.

Thus, the search on remand seems to be for a way to identify those messages that, although mentioning a candidate, are unrelated to the campaign - whether those non-campaign messages take the form of grassroots lobbying or not.

But often it is hard to tell whether a particular advertisement contains a campaign message, and this is true even though the particular message also qualifies as grassroots lobbying. "Senator Chafee doesn't deserve reelection unless he opposes Alito's nomination; so tell Chafee to vote "No" on Alito, or you'll vote "No" on Chafee." That ad clearly contains two messages: it's both grassroots lobbying and a challenge to his candidacy. But a different ad might be somewhat more veiled in its electoral dimension:

"There is no more important test of a Senator's commitment to constitutional rights than the upcoming vote on Justice Sandra Day O'Connor's replacement to the Supreme Court. Whoever fills that seat will define the rights of all Americans for decades. Any Senator who supports Bush's right-wing nominee has disobeyed his own oath to preserve and protect the Constitution. Tell Senator Chafee to uphold the Constitution and his oath by voting against Alito."

Presumably, any Senator who has disobeyed his oath of office does not deserve reelection, so this ad arguably conveys a distinct electoral message. But it leaves its electoral threat implicit even as it engages in explicit grassroots lobbying.

Trying to distinguish the grassroots lobbying ads that contain an implicit electoral message from those that do not is the tricky task. One can look at the total content of the ad - its tone and imagery as well as the totality of its words - to see if it conveys an electoral message between its grassroots lobbying lines. But any such "holistic" examination of the ad is bound to be somewhat imprecise: by definition, reading between the lines is not the same as confining one's understanding of the ad to solely the meaning that its literal words convey.

To aid in the interpretation of an ad, one could try to identify its sponsor's intent from evidence other than the content of the ad itself. But if that sort of enterprise is precarious with respect to the interpretation of statutes, it is even more so when interpreting political messages that endeavor to persuade public opinion.

It has been a longstanding basic principle of First Amendment law that no public speaker should be punished for unstated thoughts that may lie behind the speaker's stated words. A speaker may privately hope that his condemnation of the Vietnam War may cause members of the audience to evade the draft, but unless his words actually urge draft resistance, he cannot be convicted of incitement. Likewise, a cartoonist may privately hope that his satirical caricature of a public figure is so biting that it causes its victim psychic pain; yet, unless the cartoon actually contains a false statement of fact, it is immune from liability on the theory that it intended the infliction of emotional distress. By similar reasoning, the sponsor of a grassroots lobbying ad privately may hope that the ad helps defeat the incumbent's bid for reelection, but unless the content of the ad actually contains that electoral implication, the sponsor should not be deprived of constitutional protection from BCRA's reaches solely because of the sponsor's private thoughts.

It is a different matter to examine publicly accessible surrounding circumstances in order to determine the messages conveyed by a political advertisement. It is long been held that a political speech may be punished as incitement if members of the audience reasonably would understand it as such based on, not only its content, but also the context in which it was uttered. Likewise, an attack on a public figure may be subjected to liability if it contains a falsehood that, given its context, the audience reasonably would have taken as an assertion of truth. Thus, when judging whether a grassroots lobbying ad also conveys an electoral message, it is appropriate to consider, not just its content, but also the public context in which it was broadcast.

But considering context hardly simplifies the task of defining the constitutionally compelled carve-out from BCRA's source-of-funding restriction. Sometimes, even after examining an ad's context, reasonable people can differ on whether the ad contains an implicit electoral message. Indeed, the very ad at issue in WRtL may well fall into this reasonably debatable category.

In defining the scope of the carve-out, the district court - and then the Supreme Court - ultimately will have to decide whether to group the reasonably debatable ads with either those that are most clearly exempt or those that are most clearly within BCRA's permissible reach. Here's where a reminder of the McConnell holding may be useful. The McConnell majority sustained the constitutionality of BCRA's source-of-funding restriction as a general rule on the ground that its operation would be constitutionally permissible in most of the circumstances that would arise, even if it might prove constitutionally impermissible in some, relatively small, portion of its applications.

A carve-out that covered all reasonably debatable ads would not be consistent with this understanding of BCRA's permissible scope as being relatively large in relation to its potentially impermissible reach. On the contrary, a carve-out that encompasses all ads that are reasonably open to dispute as to whether or not they contain an implicit electoral message would swallow up most of the ads that fall within BCRA's time-defined prohibition on corporate and union funding, thereby leaving very little to which this prohibition constitutionally may be applied. Because this prohibition was upheld on precisely the opposition premise, it must be that the reasonably debatable ads are properly included in BCRA's permissible scope rather than the relatively narrow carve-out.

Thus, on remand, the standard for defining the scope of the carve-out should go something like this: after considering an advertisement's overall content as well as the public context in which it was broadcast, if - but only if - it would be unreasonable to view the ad as containing an implicit electoral message, then the ad is constitutionally entitled to an exemption from BCRA's source-of-funding restriction.

This standard may be difficult to meet. But it is not impossible. The Lugar-Biden ad described above, for example, would seem easily to pass this test.

Moreover, to sum up the crucial point, precisely because this standard is appropriately strict, it is the only way for the district court on remand to keep faith with the McConnell holding that the size of any carve-out must be small in relationship to the permissible scope of BRCA's bright-line, time-defined prohibition on corporate and union spending.