There is a perennial impulse among governing powers to make political dissent illegal. The Framers of our Constitution, well acquainted with this impulse, squarely countered it by vesting the powers of government with the people. This principle firmly established that it was perfectly within the rights of the people to criticize their government. The American government was to be an act of self-government by the people, and the First Amendment was to ensure the people’s participation in their own government by protecting the “four indispensable democratic freedoms” of speech, press, assembly, and petitioning the government. Thus, the First Amendment was intended to deprive the government of the power to silence criticism of official actions.
But the temptation to use government power to silence opponents is a powerful one, and the Federalists, threatened by the emerging Republican party of Thomas Jefferson, passed the Sedition Act of 1798, which barred publishing “any false, scandalous and malicious writing against the government . . . with the intent . . . to bring them . . . into contempt or disrepute.” The effort failed as Jefferson was elected president, those convicted under the act were pardoned, and the act itself was repealed by the new Republican Congress.
Throughout the next 200 years, federal and state governments have made sporadic attempts to silence criticism of public officials. Congress adopted the Sedition Act of 1918 to counter the threat of Communism. In 1941, California found the Los Angeles Times in contempt of court for criticizing a judge’s handling of a pending case. In 1964, Alabama held the New York Times guilty of libel for publishing an ad that criticized southern resistance to desegregation. In 1974, Florida passed a law requiring newspapers to afford political candidates a right to reply to editorials attacking the candidate’s character. In each case, the First Amendment’s explicit commands stood in the way.
In 2002, Congress adopted the McCain-Feingold campaign-finance law. As part of this new law, Congress prohibited corporations and labor unions from running “electioneering communications” — i.e., advertisements naming a candidate, including incumbent officeholders seeking reelection, broadcast to the candidate’s constituents — within 30 days of a primary or 60 days of a general election. Touted as necessary to eliminate “sham” issue ads that were really intended to elect or defeat a candidate, it is now apparent that the story of McCain-Feingold is itself replete with shams. This so-called “electioneering communication” prohibition is simply the latest permutation of the ancient and persistent impulse of government officials to quash criticism of their actions.
Faux Grassroots and Dissimulations
Grassroots support for McCain-Feingold turns out to have been largely a sham. Sean Treglia, the former program officer for campaign-finance reform at the Pew Charitable Trusts, boasted that, over the course of the seven years, he had directed $30 million, with Pew “in the background,” to “drive public policy” by “creat[ing] an impression that a mass movement was afoot,” “a constituency that would punish Congress if they didn’t vote for reform.” The calls to “stop the wealthy” from influencing government policy were actually generated by $140 million in grants from wealthy foundations like Pew: $123 million came from just eight foundations, and $104 million went to just 17 “campaign finance reform” organizations. Something was afoot, but it was certainly no mass movement; the constituency for McCain-Feingold was a sham.
Throughout the congressional debate over McCain-Feingold and the litigation that followed, the proposal’s proponents acknowledged that there were “genuine issue ads” — especially grassroots lobbying — that should be protected. Senators Snowe and Jeffords (who introduced the Snowe-Jeffords Amendment that became the “electioneering communication” prohibition) adamantly assured everyone that the prohibition would not affect grassroots lobbying and other public-policy advocacy. Senator Snowe declared that the prohibition “will not affect the ability of any organization to urge grassroots contacts with lawmakers on upcoming votes” and that the prohibition wouldn’t apply to “the genuine issue ads.” Senator Jeffords declared that the proposed prohibition “will not affect the ability of any organization to urge grassroots contacts with lawmakers on upcoming votes,” calling views to the contrary a “distortion.”
Upon passage, McCain-Feingold was challenged in McConnell v. Federal Election Commission. The primary defense of the law was that, because the vast majority of issue ads during the blackout periods were “shams,” the law should be upheld on its face, and genuine issue-ads could be protected in later as-applied challenges. The FEC and the McCain-Feingold sponsors, who intervened to defend the law, relied heavily on two studies, each funded by Pew as part of their effort “to create a handful of academic experts” who could justify the law.
However, the studies were themselves shams. The 1998 “Buying Time” study was pitched to Pew by NYU’s Brennan Center for Justice with the explicit promise that “the study would be abandoned midstream if the results being obtained were not helpful to the cause for more stringent campaign finance regulation.” Funding for the Brennan Center’s 2000 “Buying Time” study was solicited on the promise that the study would be “design[ed] and execute[d]” to achieve “reform.”
The studies purported to determine the exact percentage of “sham” versus “genuine” issue ads broadcast before the 1998 and 2000 elections. This was to be established by asking college students to look at the text of ads run during the blackout periods and to code them based on this question: “In your opinion, is the purpose of this ad to provide information about or urge action on a bill or issue, or is it to generate support or opposition for a particular candidate?” The results kept shifting, as Pew-paid experts used different data-sets, changed the codes assigned by student evaluators, and employed different formulas. This yielded widely disparate results, ranging from 7 percent to 64 percent of the ads being identified as “genuine.” The 7 percent figure, which was supplied to Congress in 2000, was characterized as “flat out false” by the then-executive director of the Brennan Center, with the correct number being set at 40 percent. In the end, the McConnell defendants argued in the Supreme Court that up to 6 percent of all prohibited ads were “genuine issue ads.” This figure was a sham.
Then the McCain-Feingold sponsors planted the seed of another sham. They argued that “awaiting as-applied challenges, arising in specific factual contexts, is by far the wiser course” than facial invalidation.
The Silencing Begins
In December 2003, the Supreme Court bought the argument in a 5-4 decision. Conceding that “[t]he precise percentage of [genuine] issue ads” swept in by the prohibition was “a matter of dispute,” the Court found that “the vast majority of ads” were the “functional equivalent of express advocacy” and ruled that the number of affected genuine issue-ads was not “substantial” enough for facial invalidation. “[A]ssum[ing] that the interests that justify the regulation of campaign speech might not apply to the regulation of genuine issue ads,” the Court relegated the protection of genuine issue-ads to the future as-applied challenges that the sponsors advocated.
In July 2004, Wisconsin Right to Life began broadcasting radio and television ads urging listeners to contact Senators Feingold and Kohl and to ask them to end the filibuster of federal judicial nominees. These ads were to be run until the expected climax of the judicial filibuster debate in the fall of 2004. On August 15, however, the ads became prohibited “electioneering communications” because Senator Feingold was a candidate unopposed in the September primary. Rather than risk criminal prosecution, and believing that these filibuster ads were genuine grassroots lobbying that the McCain-Feingold sponsors said would not be prohibited, WRTL filed an as-applied suit, seeking a preliminary injunction to permit continued running of its ads.
The FEC, however, opposed WRTL’s request, now claiming that the Supreme Court in McConnell had foreclosed all as-applied challenges. The district court dismissed the case and WRTL appealed. In the January 2006 oral argument in the Supreme Court, Chief Justice Roberts noted that the FEC had argued in McConnell that there could be future as-applied challenges but now was claiming that there could be none. He called this a “classic bait and switch.” Just six days after oral argument, the Supreme Court unanimously held that McConnell did not preclude WRTL’s claim that the ads were genuine issue-ads and remanded the case to the district court for a decision on the merits.
More Changing Stories
The FEC and the McCain-Feingold sponsors then argued that there were actually no genuine issue-ads at all, revealing that their McConnell argument was a sham. They based this new position on the testimony of two experts who viewed all ads during the blackout period as potentially affecting elections, whether they named a candidate or not. These experts claimed that WRTL’s real intent was to defeat Feingold, and thus the ads should be barred.
However, when the FEC and McCain-Feingold sponsors were before the Supreme Court in the first WRTL appeal, they had rejected both arguments. When asked by Justice Scalia, do “you think Congress has the power to prohibit any . . . conduct that might have an impact on the election”? the FEC’s attorney responded “no, Justice Scalia, it’s not.” And in their briefing, the FEC rejected “a constitutional standard that turned on the subjective sincerity of a speaker’s message,” since it would be “incapable of workable application” and would “invite costly, fact-dependent litigation.”
In December 2006, the district court rejected these new arguments and found WRTL’s grassroots lobbying ads to be “genuine” because there was no “link between the words and images used in the ad and the fitness, or lack thereof, of the candidate for public office.”
Back to the Top
The Supreme Court has taken up the WRTL case again and the real agenda of McCain-Feingold has been exposed. Senator McCain and the other congressional sponsors argue in their Supreme Court brief that broadcast ads would be “sham,” not “genuine,” if they “took a critical stance regarding a candidate’s position on an issue.” Thus they admitted that stifling criticism of public officials is at the “core” of the “electioneering communication” prohibition.
It is now apparent that the “electioneering communication” prohibition was misrepresented from the outset, that the arguments to justify it were shams, and that its real purpose is to silence criticism of public officials. This is irreconcilable with the First Amendment and with our form of government created by the Constitution.
But what will the Supreme Court do? Oral argument in Wisconsin Right to Life, Inc. v. FEC is scheduled for this Wednesday, April 25, and a decision is expected by the end of the Court’s term in June.
– James Bopp, Jr. is lead counsel for Wisconsin Right to Life. He is the principle attorney at Bopp, Coleson & Bostrom in Terre Haute, Indiana, and serves as general counsel for the James Madison Center for Free Speech.