Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at a pair of recent campaign financing rulings that could be moving on to the Supreme Court.
THE STATEMENTS AT ISSUE:
“We hold that the definition of ‘political purposes’ in Wisconsin [campaign finance law] is unconstitutionally overbroad and vague. In order to cure this, we adopt a construction of [the law] that limits the definition to include only express advocacy and its functional equivalent….The special prosecutor [in this case] has not alleged any express advocacy, and issue advocacy, whether coordinated [with a candidate] or not, is beyond the reach of the regulatory scheme.”
– Excerpt from the lead opinion as the Wisconsin Supreme Court on July 16 ordering an end to a special prosecutor’s years-long probe of past political activities of Wisconsin Governor Scott Walker and outside groups who secretly aided his campaigns. Among the key issues were whether those political alliances amounted to illegal coordination of campaign activity, which must be publicly disclosed and must be treated as an illegal donation to the candidate. The ruling finding no violation came in three combined cases that divided the state court, 4 to 2. The special prosecutor is now considering whether to appeal that decision to the U.S. Supreme Court.
“The Supreme Court has consistently held that disclosure requirements [in campaign finance laws] are not limited to ‘express advocacy’ and that there is not a rigid barrier between express advocacy and so-called issue advocacy. Any possibility that the Constitution limits the reach of disclosure to express advocacy or its functional equivalent is surely repudiated by Citizens United v. Federal Election Commission.”
– Excerpt from a decision by the U.S. Court of Appeals for the Third Circuit on July 16, upholding a Delaware state law that requires public disclosure of information about anyone who donates $100 or more to a group to help pay for a campaign leaflet or other election ad close to election day, discussing a campaign issue but not urging voters specifically to vote for or against a candidate. The ruling came in the case of Delaware Strong Families v. Delaware Attorney General.
WE CHECKED THE CONSTITUTION, AND…
In a string of constitutional decisions by the Supreme Court, dating back to 1976, on government power to regulate campaign finance, the Justices have repeatedly loosened limits on spending to influence elections. But they have regularly made clear that public disclosure of how money flows into politics is necessary to keep voters informed. And they have often made clear that coordination of a candidate’s campaign with outside groups can be regulated, including imposing a duty to publicly disclose it.
In recent years, however, advocacy groups have been challenging such disclosure requirements with the argument that they stifle political expression, by exposing donors or advisory groups to public ridicule, and even public threats, when they are engaging in activities protected by the First Amendment. The long-range goal of these efforts is to set up new test cases that might lead the Supreme Court to change its mind on disclosure.
One of the tactics being used increasingly in those challenges is to try to persuade the courts that disclosure should be mandated only when campaign activity involves a direct plea to voters to vote for or against a specific candidate up for election. The Supreme Court has called that “express advocacy,” and has been more receptive to government regulation of that kind of activity, to help voters understand who is for or against a given office-seeker.
The challenging groups have thus been seeking greater legal freedom to engage in the other kind of campaign activity (known as “issue advocacy”) without having to disclose who gives money or is otherwise involved. This is the kind of advocacy that picks out a specific issue that supposedly will figure in an election campaign, and tries to persuade voters to make up their minds in favor of a candidate who shares that group’s view on the issue. Ads of this kind are careful not to say “vote for” or “vote against” a specific candidate in the race. The Supreme Court has regarded issue advocacy as closer to actual political expression, deserving greater protection.
The Supreme Court, however, has not drawn a distinction between the two kinds of advocacy when it has given its support to government-mandated disclosure requirements.
Efforts to narrow disclosure duties to “express advocacy” both succeeded and failed in a pair of court rulings that, by coincidence, were issued on the same day, July 16. The conflicting results are the kind that will often lead the Supreme Court to step in to say who was right.
In one of the new rulings, the Wisconsin Supreme Court ruled that a state law requiring public disclosure of campaign coordination could only be enforced when the aim is to persuade voters to cast their ballots for or against a named candidate (that is, express advocacy). When the joint activity is aimed only at promoting an issue (that is, issue advocacy), the First Amendment does not allow it to be regulated at all, through disclosure or any other form of campaign controls, the majority of the state court decided.
In the other ruling issued that day, the federal court of appeals that sits in Philadelphia (for the Third Circuit) ruled just the opposite. The publication close to Election Day of an issue-oriented ad, it decided, does not gain protection under the First Amendment from mandated public disclosure just because it does not amount to express advocacy. It is still an attempt to influence voters, and they are entitled to know who is paying for that attempt, the court made clear.
There are, of course, talented lawyers on both sides of this developing controversy, and there are dedicated clients on each side, so the chances that this will move on to the Supreme Court in a clearly framed test case seem strong.
