District Court Makes Vague Campaign Finance Law Vaguer

By Richard E. Coleson, J.D.

On Friday, May 2, the U.S. District Court for the District of Columbia declared many key provisions of the federal Bipartisan Campaign Finance Act of 2002 ("BCRA") unconstitutional in the case of McConnell v. FEC. The BCRA, commonly known by the name of its Senate sponsors as "McCain-Feingold," was considered by a three-judge panel, which split on many issues.

The Court was unanimous in striking down the ban on contributions by minors to candidates. Political parties also won when the panel struck down a prohibition on contributions to them from corporations, unions, and individuals to be used for political activity unrelated to particular candidates, e.g., get-out-the-vote activity.

But on the issue most critical to NRLC, the regulation of "electioneering communications," the court succeeded in making a vague law vaguer, a broad law broader. The court first struck down the definition which made it a crime for a corporation to even mention the name of a candidate for 60 days before an election (30 days before a primary). This was expected.

But then the court upheld a modified version of a backup definition of "electioneering communication" that leaves it far broader than anything Congress intended or even debated. The court amputated the final clause of the backup definition (as too vague), leaving the operative definition of electioneering communication as any broadcast, cable, or satellite communication which promotes or supports a candidate for that office, or attacks or opposes a candidate for that office (regardless of whether the communication expressly advocates a vote for or against a candidate).

The operative verbs in the court's truncated backup definition, i.e., promote, support, attack, and oppose, are undefined and have a broad range of meanings and connotations. And the court said that all that had to be done to promote or attack a candidate was to broadcast a communication that is not "neutral." The court gave as an example an AFL-CIO advertisement that criticized a legislator's position on legislation. So now simply disagreeing with a candidate's legislative position is attacking or opposing that candidate under the BCRA, in violation of the law.

Furthermore, the communication does not have to actually name or even refer to the candidate - - only be considered by some enforcement official to be promoting or attacking someone who happens to be a candidate. It is not confined to being about an exhortation to vote (which the amputated clause would have required), nor is it in any way connected to an election campaign. Although it refers to "a candidate," the communicator does not have to know that the person is a candidate. (To be a candidate simply means one has received a campaign contribution or made a campaign expenditure of $5,000 - - and the FEC considers all incumbent members of Congress to be candidates, unless they have declared they are not running for reelection.) Nor must the communication be limited in any way to a candidate's district or state. One could "attack" a Florida candidate with a communication broadcast in Oregon.

The district court said citizen groups could be safe if they never mention a candidate in a broadcast communication or always get an FEC advisory opinion about their communications first. But these "safe harbors" are totally unworkable and unconstitutional. The operative definition of "electioneering communication" nowhere requires that a candidate be named, only promoted or attacked (which could happen without naming). Under this expansive prohibition, a public official could escape all broadcast criticism by citizen groups by filing an early declaration of candidacy; this is absolutely antithetical to the First Amendment. And the FEC could never issue advisory opinions fast enough to keep up with the fast-breaking, changeable needs of citizen groups engaged in grassroots lobbying.

The backup definition is so vague that NRLC General Counsel James Bopp, Jr., asks, "Who now knows what speech is prohibited and what isn't?" He declared the backup definition of "electioneering communications" "more pernicious, more evil" than the 60-day blackout period that was struck down, noting that the backup definition could be violated by merely labeling a candidate/legislator "pro-life" or "pro-choice," which could launch an extensive and expensive FEC investigation into whether listeners would consider such labeling opposing or supporting candidates.

Since the court's definition is far broader than anything Congress even debated, let alone approved, the district court was without authority to so redefine the BCRA's "electioneering communication" definition, and on appeal, this new definition should be found unconstitutional.

But in the meantime, groups like NRLC are involved in legislative battles to ban cloning and pass the Unborn Victims of Violence Act and the Partial-Birth Abortion ban. These current battles could involve broadcast advertisements encouraging constituents to contact their legislator (many are candidates) and express their opposition to the positions of the recalcitrant.

Under the district court's neutrality test for attacking and opposing, these attacks on a candidate's positions could be considered attacks on the candidate. Consequently, on May 8 NRLC and other plantiffs asked the court to issue an injunction to halt enforcement of this part of the BCRA while the United States Supreme Court considers the case.