The regulator’s hand, once loosed, is not easily leashed

Published on May 2, 2008
by Michael Schrimpf

File Under: Political Committees & 527s

Judge Wilkinson, writing the majority opinion in North Carolina Right to Life v. Leake, declares that "the regulator's hand, once loosed, is not easily leashed." Indeed.

NCRL v. Leake is a welcome victory for First Amendment proponents fearful of the encroachment of campaign finance regulations on core political speech. Few judges seem to better understand the stakes than Judge Wilkinson, as expressed in his addressing of the dissenting opinion.

"This is not some marginal or incidental freedom with which the dissent is dealing. Rather it is the essential freedom that defines our ability -- both individually and collectively -- to speak in unfettered fashion on the most pressing issues of the day, and to express approval or disapproval of the functioning of our representative government."

Nor was the burdensome impact of vague and overbroad regulations lost in the majority opinion.  The challenged statute regulated communications that include evidence that a communication is designed to "support or oppose the nomination or election of one or more clearly identified candidates."

The statute, § 163-278.14A, states that "evidence" includes any communication whose, "essential nature expresses electoral advocacy to the general public and goes beyond a mere discussion of public issues in that they direct voters to take some action to nominate, elect, or defeat a candidate in an election.  If the course of action is unclear, contextual factors such as the language of the communication as a whole, the timing of the communication in relation to events of the day, the distribution of the communication to a significant number of registered voters for that candidate's election, and the cost of the communication may be considered in determining whether the action urged could only be interpreted by a reasonable person as advocating the nomination, election, or defeat of that candidate in that election."

But, Wilkinson asks, "how is a speaker -- or a regulator for that matter -- to know how the "timing" of his comments "relate" to the "events of the day"? Likewise, how many voters would be considered "significant"? And at what "cost" does political speech become regulable?"

Of course, "[t]here is no answer to any of these questions...Neither the regulator nor the regulated can possibly be expected to know when the "essential nature" of speech is deemed to "direct voters to take some action to nominate, elect, or defeat a candidate in an election" based on these vague criteria. Thus, § 163-278.14A(a)(2) fails to satisfy the second requirement of the Supreme Court's "functional equivalent of express advocacy" approach."

So falls § 163-278.14A, "[t]o do otherwise would offend basic First Amendment values."

Wilkinson next goes on to recognize that "designation as a political committee often entail a significant regulator burden" as such Buckley direct that "only entities ‘under the control of a candidate or the major purpose of which is the nomination or election of a candidate' can be so designated."

In Leake, "The parties...dispute[d] the meaning of Buckley's directive that only organizations that have ‘the major purpose' of supporting or opposing a candidate can be regulated as a political committee. The plaintiffs contend[ed] that the definite article is crucial -- the Court meant what it said when it said "the major purpose" -- and that the support or opposition of a candidate must at least be the primary purpose of an organization for it to be designated as a political committee."

Wilkinson finds that "[v]iewed in light of Buckley's goals, it is clear that the importance the plaintiffs attach to the definite article is correct... If organizations were regulable merely for having the support or opposition of a candidate as "a major purpose," political committee burdens could fall on organizations primarily engaged in speech on political issues unrelated to a particular candidate. This would not only contravene both the spirit and the letter of Buckley's "unambiguously campaign related" test, but it would also subject a large quantity of ordinary political speech to regulation. See, e.g., id. at 80..."

Thus, given the vagueness of the statute's test, "it is hard to argue with the plaintiff's contention that, in designating organizations as political committees, North Carolina is essentially handing out speeding tickets without 'telling anyone . . . the speed limit.' Appellant Reply Brief at 22.

Furthermore, if a board of regulators is to decide when a purpose becomes 'a major purpose,' especially on the basis of unannounced criteria, this leaves the application of § 163-278.6(14) open to the risk of partisan or ideological abuse. This is nowhere so dangerous as when protected political speech is involved... Unguided regulatory discretion and the potential for regulatory abuse are the very burdens to which political speech must never be subject."

Moving on, the majority opinion importantly recognizes the fallacy of contribution limits on independent entities.

"Importantly..the Court has never held that it is constitutional to apply contribution limits to political committees that make solely independent expenditures."

In fact, "As the state attempts to regulate entities further and further removed from the candidate, the state interest in preventing corruption necessarily decreases. At the extreme, the entities furthest removed from the candidate are political committees that make solely independent expenditures. As such, it is "implausible" that contributions to independent expenditure political committees are corrupting. NCRL II, 344 F.3d at 434...

The bottom line is this: independent expenditure political committees do not serve as mouthpieces for political candidates. In fact, such committees do not even coordinate their messages with candidates. Instead, independent expenditure political committees offer an opportunity for ordinary citizens to band together to speak on the issue or issues most important to them. In other words, they allow ordinary citizens to receive the benefits that result from economies of scale in trying to convince the electorate of a political message...

Nothing could be further removed from the spirit of the First Amendment than labeling speech corruptive merely because it is effective."