Line Drawing ... and Face Saving

Published on April 16, 2008 01:30 PM
by Steve Hoersting

File Under: Jurisprudence & Litigation, Political Committees & 527s

The Voters Education Committee (“VEC”) is seeking review of a Washington State Supreme Court opinion on the dividing line between the unfettered discussion of issues and the full regulation of “political committees.”  Petition for a Writ of Certiorari, Voters Education Committee v. Washington State Disclosure Commission.  The Washington statute defines “political committee” as “any person (except a candidate or an individual dealing with his or her own funds or property) having the expectation of receiving contributions or making expenditures in support of, or opposition to, any candidate or any ballot proposition.”  Wash. Rev. Code § 42.17.020(33).  The Washington court held, incorrectly, that, under the Supreme Court’s opinion in McConnell, the support or oppose standard is not vague, not limited to express advocacy, and should be enforced to regulate speech that implied opposition to a candidate.  Voters Education Committee v. Washington State Public Disclosure Commission, 166 F.3d 1174 (Wash. 2007).  As any state party committee or FEC commissioner can tell you, however, the “support or oppose” standard is inherently vague and the need for a limiting construction obvious.

But granting certiorari in the Washington case may cause heartburn for a Court uncertain as to the “constitutional standard for clarity … in the abstract.”  WRTL II, 127 S. Ct. 2652, 2669, n.7 (plurality opinion).  The Court has so oft repeated since McConnell that express advocacy is “not constitutionally required,” and so rejected every opportunity to back away from the statement, that it is hard to imagine that certain Justices, not least Chief Justice Roberts, would grant VEC’s petition without some hesitancy.

In Buckley, the Supreme Court noted the threat to robust issue discussion that lies within vague statutes, and noted that “the use of so indefinite a phrase as ‘relative to’ a candidate fails to clearly mark the boundary between permissible and impermissible speech.”  It held that FECA’s “constitutional deficiencies…can be avoided only by reading [FECA’s expenditure definition] as limited to communications that include explicit words of advocacy of election or defeat of a candidate.”  Id. at 41-42.

In 2002, Congress created the “promote, support, attack, or oppose” standard to serve as one of several anti-circumvention measures necessary to implementing the national political-party-committee soft-money ban.  In reviewing the measure, the Court held that the “support” or “oppose” standard provides “reasonable opportunity” for sophisticated political actors working within state political party committees to “know what is prohibited” with regard to the funding of communications depicting federal candidates.  McConnell v. FEC, 540 U.S. 93, 170, n.64 (2003).  The Court did not apply that holding to communications run by everyday citizens’ organizations, however, and did not hold that “support” or “oppose” standards were sufficiently clear, standing alone, to subject core speech to regulation.  Id.

Another BCRA provision presented the Court with the problem of drawing the line between issue advocacy and advocacy of elect or defeat.  In McConnell, the Court upheld the definition of electioneering communication “to the extent that the issue ads broadcast during the 30- and 60-day periods preceding federal primary and general elections are the functional equivalent of express advocacy.”  McConnell, 540 U.S. at 205-206 (2003).  Many have questioned how any test other than express advocacy could cure the overbreadth looming in the electioneering communications definition, but the Court held that individual organizations may challenge the breadth of the definition as-applied to any set of communications they hoped to run.  Wisconsin Right to Life v. FEC, 546 U.S. 410 (2006) (“WRTL I”).

In Federal Election Commission v. Wisconsin Right to Life, Inc., 127 S. Ct. 2652 (2007) (WRTL II), the Court upheld an as-applied challenge to BCRA Section 203, which makes it a crime for a corporation to use its general treasury funds to pay for any “electioneering communication.”   Id. at 2658.  The Court had its opportunity to overturn McConnell, and return to the standard of express of advocacy, but didn’t take it – despite Justice Alito’s promise to do so in the future if the current compromise proved ineffective.  Rather, the Court held that an ad is the “functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”  Id. at 2667.  Many sensed the decision was merely one manifestation of Chief Justice Roberts’ doctrine of judicial minimalism, stated openly in a 2006 commencement address at Georgetown Law Center, or that the Chief wanted to assure the nation that a 50-year old could steer the ship of state; that no provisions recently upheld would be struck down absent sufficient reason.  The electioneering communication definition was one such provision.

Justice Scalia said, in concurrence, that “[t]his faux judicial restraint is judicial obfuscation”; that “seven Justices of this Court … agree that the opinion effectively overrules McConnell without saying so.”  WRTL II, 127 S. Ct. at 2684, n.7 (Scalia J., concurring).  Better to say so openly, said Scalia, for the no-reasonable-interpretation-other-than test for as-applied challenges to the breadth of the electioneering-communication definition is itself vague.  See WRTL II, supra at 2674 (Scalia J., joined by Kennedy J. and Thomas J., concurring).  Chief Justice Roberts answered that the federal electioneering-communication test for genuine issue advocacy “is only triggered if the speech meets the bright-line requirements [of mentioning a candidate within 30 or 60 days of an election] in the first place.”  WRTL II, at 2669, n.7. 

The “support” or “oppose” standards in the Washington statute, however, have no clear 30- or 60-day markers before coming into operation.

It may be that Buckley did not determine “what the constitutional standard for clarity was in the abstract, divorced from specific statutory language,” and that “Buckley’s intermediate step of statutory construction on the way to its constitutional holding [the express-advocacy, magic-words test] does not dictate a constitutional test.”  WRTL II, at 2669, n.7 (plurality opinion).  Or, it may be that “if a permissible test short of the magic-words test existed, Buckley surely would have adopted it.”  WRTL II, (Scalia, J., concurring).  We have no way of knowing which test the Court would adopt as the “constitutional standard for clarity … in the abstract” now that review would shift from statutes in FECA construed in Buckley to state campaign-finance restrictions the Court has yet to consider.  WRTL II, at 2669, n.7 (plurality opinion).  

Review of the Washington statute, of course, would not constitute review in the "abstract," but the problems it raises could re-open marked differences of opinion between the Justices on the Court, with McConnell as the casualty.  But that is the price of being a Supreme Court justice.  It would be unfortunate if unresolved internal disagreements or the need for face saving or “faux judicial restraint” were to prevent the Court from drawing, or attempting to draw, a proper line in the Washington case.  Thirty states with “support or oppose” standards on the books are watching and waiting.