Is the Supreme Court Ready to Overturn the 'Electioneering Communications' Ban?

Jacob Sullum | June 29, 2009

In March the U.S. Supreme Court heard oral arguments in a case challenging legal restrictions on the advertising and distribution of a documentary that suggested Hillary Clinton would be a terrible president. Today, the last day of its current session, the Court announced that instead of issuing a decision now it will hear new arguments from both sides in a special September session, focusing on whether it should reconsider two precedents dealing with campaign finance regulation. One decision, issued just six years ago, upheld a provision of the 2002 Bipartisan Campaign Reform Act (BCRA) that bans "electioneering communications," defined as messages sponsored by unions or corporations (including nonprofit interest groups) that mention a candidate for federal office and air close to an election. Since the Court already has narrowed the reach of that provision, restricting it to "express advocacy or its functional equivalent," it may now be prepared to overturn the ban completely. The other decision the court plans to re-examine, issued in 1990, upheld a Michigan ban on the use of corporate funds to advocate for or against state candidates. The aim of minimizing corporate influence on elections is the rationale for BCRA's speech restrictions.

Institute for Justice attorney Steve Simpson says:

The Court has set up a blockbuster case about Americans' First Amendment rights to join together and speak freely about politics.  A majority of the High Court appears to recognize the grave threat to free speech posed by both the electioneering communications ban in McCain-Feingold and the ban on corporate political speech.  This case could mark a significant advance for First Amendment rights and will have major implications for state laws nationwide.

In a new I.J. report (PDF), Duke University political scientist Michael Munger explains how federal and state restrictions on electioneering communications "stifle free speech and civic engagement." In April I analyzed the (first) oral arguments in the Clinton movie case. In 2007 I discussed Wisconsin Right to Life's successful fight against federal censorship of its ads. Other Reason coverage of the federal ban on electioneering communications here.

Comments

Mike|6.29.09 @ 3:31PM|#

I hope none of the justices that voted to strike down the campaign finance restriction bill die or retire before September. This might be another 5-4 decision whichever way it goes.

|6.29.09 @ 3:56PM|#

Is the Supreme Court Ready to Overturn the 'Electioneering Communications' Ban?

I certainly hope so. What part of "no law... abridging..." is so goddam hard to understand?

|6.29.09 @ 4:07PM|#

Let's get this out of the way...

[whiny leftist]
Money isn't speech!
[/whiny leftist]

|6.29.09 @ 4:13PM|#

Don't get your hopes up, this 'court' hates the first amendment, among others.

They will find a way to screw freedom again.

|6.29.09 @ 4:14PM|#

Money burning is speech, however.

proud libitard|6.29.09 @ 4:14PM|#

SF,

whiny leftist is redundant...

Paul|6.29.09 @ 4:23PM|#

The court had better overturn this completely. This is one of the most odious laws to come out of our government in my lifetime.

Paul|6.29.09 @ 4:26PM|#

Let's get this out of the way...

[whiny leftist]
Money isn't speech!
[/whiny leftist]


Except often, their argument is the reverse of that.

If they stuck to that argument, they might be able to garner a smidge of moral capital. But when the whiny leftists start claiming that speech is money, them's fightin' words.

|6.29.09 @ 4:28PM|#

I am surprised that the "liberals" aren't expected to be good on the First Amendment issues. That's the Amendment they're supposed to be good at.

|6.29.09 @ 4:34PM|#

Please. The first admendment is only for porn and general ADULT nakedness. It certainly was never meant to apply to political speech.

|6.29.09 @ 4:35PM|#

Both "liberals" (hate speech, campaign finance) and "conservatives" (flag burning, porn) support the 1st only when they conclude it suits their side in the contest for votes.

Libertarians support the first and let the chips fall where they will.

The first is merely the most important 45 words ever written.

Fluffy|6.29.09 @ 4:48PM|#

I'm actually hopeful about this case.

That is probably a jinx, and I apologize to everyone for that.

But it seems almost as though the perfect test case has been brought to show that the line the law tries to draw around "electioneering" really isn't tenable.

I'm surprised that this case isn't being fought on 14th amendment grounds as well as 1st amendment grounds. The government basically concedes that they would not be able to pursue this case if the documentary had been made by a "real" filmmaker or member of the "real" media. Basically they're asking the court to rule that it's OK to restrict speech based on who is doing the speaking, and based on the government's best guess about what their "secret desires" are. And if the same content is either legal or illegal based on the government's opinion of the people producing that content, how is that not an equal protection violation?

|6.29.09 @ 4:49PM|#

J sub, thanks for the HTML website. The special session may be the best news I've heard from the SCOTUS lately, and that's saying a lot. God please watch over our friends of speech on the court.

MNG|6.29.09 @ 5:01PM|#

I guess I'm the whiny leftist...I don't support the bans on running ads within certain windows, that's b.s., but I certainly am for the limits on contribution amounts. Writing a check is not a protected form of speech...You can write a book saying what you want, go on your radio show and say whatever, etc.,.

Rich|6.29.09 @ 5:04PM|#

When BCRA first raised its ugly head I thought it was a joke -- *obviously* in violation of the First. As it became clear that it was being treated "seriously" I asked my congresscreatures to explain why it was not unConstitutional. I received not a single response, not even the usual form-letter crap. We'll see ...

Paul|6.29.09 @ 5:05PM|#

Writing a check is not a protected form of speech...You can write a book saying what you want, go on your radio show and say whatever, etc.,.

Except if you mention a candidates name within sixty days of an election. Then that's 'express advocacy' and as I posted above, your speech becomes money.

Fluffy|6.29.09 @ 5:11PM|#

I guess I'm the whiny leftist...I don't support the bans on running ads within certain windows, that's b.s., but I certainly am for the limits on contribution amounts. Writing a check is not a protected form of speech...You can write a book saying what you want, go on your radio show and say whatever, etc.,.

Even if you think money isn't speech, the 1st amendment doesn't only protect speech. It also protects assembly. And money sure as hell is assembly.

If three people get together to push a political issue, and they decide to split up the work by saying, "Sam, you write up a position paper on this issue. Joe, you declare yourself a candidate for city council based on that issue. Harry, you take Sam's copy and run an ad based on it, and run some ads supporting Joe for city council," that absolutely, positively is "assembly" and a political system that criminalizes the actions of these three is a tyranny. Sorry.

Paul|6.29.09 @ 5:14PM|#

Or include "magic words" in your message like "like" or "feels good" or "totally hawte". Then you're in trouble. Chilling effect on speech? Nnnaaaaawww, ignore the attempt to suppress a documentary about Hilary Clinton.

Express Advocacy: According to FEC regulations, this type of communication is one (a) that uses particular "magic words" like "elect," defeat," "vote for," or "vote against," or (b) when taken as a whole and with limited reference to external events, such as the proximity to the election, can only be interpreted by a "reasonable person" as advocating the election or defeat of one or more clearly identified candidate(s).

http://www.campaignfinanceguide.org/f-expressadv.html

|6.29.09 @ 5:16PM|#

You can write a book saying what you want, go on your radio show and say whatever, etc.,.

All of which can be done free of charge by people who don't own radio stations or publishing houses, right?

Saying that you have free speech, but not the right to "broadcast" it in ways that require money is just reducing free speech to a whisper. Egalitarian? Yes. What the Framer's seem to be getting at with the 1st? No way.

It's a principled stance, not an outcome oriented one. Do you really think that libertarians are fans of helping incumbents? And can you say with a straight face that Democrats would squawk about the issue so loudly if the GOP wasn't out-stripping them in fund-raising?

Paul|6.29.09 @ 5:20PM|#

b) when taken as a whole and with limited reference to external events, such as the proximity to the election, can only be interpreted by a "reasonable person" as advocating the election or defeat of one or more clearly identified candidate(s).

Not to beat a dead horse (and this campaign finance horse is deader than a totally dead thing) could a "reasonable person" conclude that Fahrenheit 9/11-- released in 2004 (coincidence? I think not!)-- took a, shall we say, negative view of George W. Bush and, in a roundabout way advocated for his defeat?

MNG|6.29.09 @ 5:21PM|#

SF
I'm not talking about the ad bans. They sound to me like speech restrictions. I'm talking about limiting how big of a check any individual can give to a campaign or election-based organization.

Giving a check may facilitate some speech, but is not in itself a form of speech. Hey, I'm a judicial conservative in that way, I refuse to read that term so broadly, you know like you guys do with "commerce"

|6.29.09 @ 5:27PM|#

The Democrats will squak regardless of who is getting more donations. No one's going to make anything of it in the media. On taxes and campaign finance the exempt express advocates in the press let them slide with do as I say, not as I do.

Paul|6.29.09 @ 5:43PM|#

I refuse to read that term so broadly, you know like you guys do with "commerce"

We read commerce broadly?

Let's take a stroll down mammory lane:

The Senate report attached to the act states that "Gender based crimes and
fear of gender based crimes...reduces employment opportunities and
consumer spending affecting interstate commerce."

However, Congress has a clear Constitutional right to regulate interstate commerce. This act is based solely on interstate commerce and is therefore Constitutional.

The act of which they speak: The Violence gainst Women Act.

No, the act didn't pass because it was unconstitutional under the equality doctrine in the constitution. But that didn't try to stop them from passing this under the right to regulate interstate commerce. Libertarians didn't broadly interpret commerce, someone else did... another group whose moniker escapes me right now.

|6.29.09 @ 5:43PM|#

I'm talking about limiting how big of a check any individual can give to a campaign or election-based organization.

Do you think the government should be able to prohibit you from buying an ad to publicize your views on which candidate to vote for?

If you think the First Amendment protects your ability to spend your own money to publicize your own views, then why doesn't it protect your ability to get together with other people to spend money to publicize views you hold in common?

And how is getting together with other people to spend money to publicize views you hold in common different from writing a check to a check to a national organization to run ads supporting your favorite cause?

How is running ads supporting your favorite cause different from running ads supporting your candidate?

How is writing a check to pay for ads supporting your candidate different from giving to a campaign or election-based organization?

Peter|6.29.09 @ 5:51PM|#

I'm talking about limiting how big of a check any individual can give to a campaign or election-based organization.

So can I give little amounts of money to many individuals with the condition that they have to then turn around and give some or all of that money to a single campaign or election-based organization?

MNG|6.29.09 @ 5:53PM|#

"We read commerce broadly?"

No, like I refuse to read speech broadly to include writing a check you guys refuse to read commerce broadly to include things like the manufacture of goods to be used in commerce.


"How is writing a check to pay for ads supporting your candidate different from giving to a campaign or election-based organization?"

I don't see much difference if I understand you right. I'm for limits on both!

MNG|6.29.09 @ 5:53PM|#

Peter
I'd obviously be against that.

|6.29.09 @ 6:25PM|#

So, MNG, you don't think you should be allowed to buy an ad saying "I'm MNG, and I Think You Should Vote for Obama". That a law prohibiting such an ad would be not be a violation of the First Amendment guarantees of free speech and a free press?

Do you think a newspaper should be allowed to print an editorial saying "I'm the editor, and I think you should vote for Obama"? What's the difference between an ad and an editorial saying the same thing?

Do you think you should be allowed to print flyers saying "I'm MNG, and I Think You Should Vote for Obama" and distribute them? What's the difference between flyers and a newspaper ad or editorial?

|6.29.09 @ 6:26PM|#

No, like I refuse to read speech broadly to include writing a check you guys refuse to read commerce broadly to include things like the manufacture of goods to be used in commerce.

MNG, am I right in thinking that you interpret "freedom of speech" to mean "freedom to speak to people within earshot of my unamplified voice"?

MJ|6.30.09 @ 6:34AM|#

"I refuse to read that term so broadly, you know like you guys do with "commerce"-MNG

Libertarians do not read the commerce clause broadly because doing so invites federal interference in any number of activities that can be at least tenuously deemed related to commerce.

MNG does not read free speech clause broadly so the federal government can restrict activities that are necessary to facilitate and amplify speech.

Yeah, MNG that's exactly the same thing.

MJ|6.30.09 @ 7:10AM|#

"Writing a check is not a protected form of speech...You can write a book saying what you want, go on your radio show and say whatever, etc.,."

I suppose rationalizing that writing a check and writing a book are fundamentally different things. The problem is somebody, ultimately, is writing checks to pay for publishing a book, running the radio station, producing a movie. This is the reason the anti-Clinton movie got banned, because what the group that made the movie did to fund the production is fundamentally no different from what a political campaign does to fund it's activities. Once you accept that the government has the authority to limit campaign contributions in cash, it is a short step to limiting any funding for speech, as it all looks the same in the real world.