While lacking a crystal ball, Arizona’s election law attorneys will be closely watching an upcoming U.S. Supreme Court case for clues on how the court will vote on challenges to campaign finance regulations.
The case, Federal Elections Commission v. Wisconsin Right to Life pits the regulatory agency against the anti-abortion and euthanasia group that was forbidden from broadcasting a series of commercials during the 2004 election cycle.
“It clearly is one of the important election law cases going up to the court,” said Valley attorney Chuck Blanchard, who represents the Arizona Democratic Party. “It raises really interesting issues about the First Amendment restrictions on the ability to regulate campaign speech.”
And an attorney with the Arizona chapter of the Institute for Justice, which supports Wisconsin group’s position, says a decision favorable to that organization could instigate changes to the matching fund provisions of the Clean Elections Act.
On Jan. 19, the high court agreed to hear the commission’s appeal of a December ruling that exempted the group’s ads from federal campaign finance laws that ban corporations and labor unions from using their treasuries to influence elections during the “blackout” period 30 days prior to a primary election and 60 days before a general election.
The provisions are found in the Bipartisan Campaign Finance Reform Act of 2002, the latest version of campaign regulations collectively known as McCain-Feingold laws, named after the prime sponsors, Arizona Sen. John McCain and Wisconsin Sen. Russell Feingold.
Free speech issue?
The right-to-life group insists the ads were not meant to influence an election, as the FEC contends, but qualified as genuine issue advertisements because they were aimed at stopping anticipated filibustering of judicial appointees of the Bush administration.
The ads urged Wisconsin residents to contact Sen. Feingold, who was running for re-election, and Sen. Herb Kohl, who was not, and request that the senators not engage in filibustering. No mention was made of the officials’ political party, re-election status or past or current positions on filibustering.
But Blanchard agrees with Republican election law attorney Lee Miller that the difference between legitimate issue lobbying and not-so-subtle candidate bashing or promotion often is minimal.
The advertisements are often referred to by pragmatics and supporters of greater regulation and as “sham ads” and are often the product of extremely dedicated interest groups, said Miller.
“The game played on the federal level is to disguise campaign ads as issue ads and the classic example of that is abortion advertisements,” he said. “The people making them have zero expectation somebody is going to pick up their phone and call their senator.”
Adding interest to the case against Wisconsin Right to Life is the fact the U.S. Supreme Court has already drawn and redrawn the line between express advocacy for or against federal candidates and grassroots issue lobbying.
And due to the retiring of Justice Sandra Day O’Connor, who traditionally has supported regulation, and the following appointment of Samuel Alito to the U.S. Supreme Court, there stands a good chance that line is set to move again, said Blanchard.
Judging speech
In the landmark 1976 case Buckley v. Valeo the court ruled limits on contributions to candidates were acceptable because the government has a compelling interest in curtailing corruption and its appearance.
But in the same stroke, the high court refused to allow government restrictions on independent expenditures, including issue ads, finding they did not pose the same “quid-pro-quo” dangers of corruption presented by direct campaign contributions.
However, the safe haven for issue ads financed by corporations and unions was lifted in 2003, when the court by a 5-4 vote ruled in McConnell v. Federal Elections Commission that the “vast majority” of such ads shown during blackout periods were the “functional equivalent” of express advocacy and therefore subject to government regulation.
By freeing Wisconsin Right to Life’s advertisements from FEC control in December, the federal District Court ruling directly challenges portions of the McConnell ruling regarding corporate and union funded issues ads during blackouts.
It was found that an issue ad’s legitimacy should be determined by a “facial evaluation” of language and images, and not the “intent” or intended “effect” a message could have on voters, as argued by the FEC and interveners including McCain.
“Common sense, if nothing else, dictates that requiring such prerequisites to assessing whether a given ad is a ‘sham ad’ and therefore regulable under BCRA’s electioneering communications definition is both practically and theoretically unacceptable,” wrote judges David Sentelle and Richard J. Leon.
Rematch
And although the upcoming rematch is limited to the anti-abortion group’s commercials, insiders like Blanchard and Miller are hoping it will help them determine if the court will rule in favor of campaign regulation or unfettered free speech in future challenges.
But the attorneys are wishing for different outcomes on the future legal tests to campaign finance regulations.
“In fantasyland you would hope the court will come to a conclusion that laws limiting both expenditures and contributions are overly burdensome and ineffective tools to regulate political speech,” said Miller, who advocates instantaneous electronic disclosure for both contributions and expenditures. “Let the public make their voting choices, amongst other things, based on the people candidates choose to associate with.”
Though Blanchard said he would like to see the blackout period removed to protect speech rights during elections, he doesn’t support dismantling other areas of reform measures such as spending limits.
“I think it can be done on a narrow ground and it doesn’t have to unravel the whole system,” he said, adding that contribution and spending limits help control “undue influence” of powerful special interest groups.
Effect on Clean Elections?
Though on different sides of the political spectrum, Miller and Blanchard agree the U.S. Supreme Court case will probably have little impact on campaign finance regulation in Arizona.
Both note Arizona has a similar 16-week “blackout” period as prescribed by the 1998 passing of the Clean Elections Act, but the state’s campaign oversight committee, the Citizens Clean Elections Commission, has simply chosen not to enforce it.
“Under a strict reading of Arizona law, the commission could have taken action if someone in a newspaper ran an ad that referred to candidate for office even if it was a pure issue ad,” said Blanchard, who points out the Citizens Clean Elections Commission did not provide matching funds in response to voter identification commercials featuring Secretary of State Jan Brewer or to a mailer regarding a smoking initiative that featured then-Democratic legislative candidate Mark DeSimone.
And why would a group create issue ads near elections in Arizona, asks Miller? Unlike the federal government, there is little incentive to create issue ads concerning state politics during elections in Arizona because the Legislature is not in session anyway, he said.
“There’s no vote, no bills, and no action that a legislator could take,” said Miller, adding such spending would not only probably be useless, but could possibly trigger matching funds to an opposing candidate.
But the finer intricacies of who can speak and when is in itself the problem, said attorney Jennifer Perkins of the Arizona chapter of the Institute for Justice, which has filed amicus briefs on behalf of Wisconsin Right to Life.
“Political speech should be deregulated,” she said. “The First Amendment reads ‘Congress shall make no law…’ and what we’re having are these plethora of campaign finance laws like the Clean Elections one that are subject to these nitpicky, judicial determinations of these very fine points.”
While Blanchard and Miller do not believe the case will have an effect on Arizona law, Perkins said she believes a decision that defends Wisconsin Right to Life could instigate changes to the matching fund provisions of the Clean Elections Act.
As by law, in the 2006 election cycle the Citizens Clean Elections Commission considered factors such as placement, timing, and presentation of candidates when deciding whether to issue matching funds to counter independent expenditures.