The Federalist Society

Election Law Observer

Free Speech & Election Law Practice Group Newsletter - Volume 2, Issue 3, Winter 1998

December 1, 1998

Allison R. Hayward

Elsewhere in this issue, Charles Spies discusses the constitutional problems with campaign finance regulations that seek to restrict political speech mentioning a candidate if it occurs within a specific time period before an election. These kinds of regulations, which have been called "blackout periods" or "time buffers," have become a popular device. Legislatures and initiative writers have included them in state law in an attempt to censor the use of issue advertising near an election. As Spies indicates, no less a vehicle for reform than the McCain-Feingold bill featured such a blackout period.

Each time a court has been asked to review the constitutionality of such a provision, it has found the blackout/buffer unconstitutional. Here are summaries of two other state-level cases that threw out state law blackout/buffers.

West Virginians for Life, Inc. v. Smith, 919 F. Supp. 954 (S.D.W.Va. Mar. 11, 1996) (preliminary injunction granted); 960 F. Supp. 1036 (S.D.W.Va. 1996) (merits). This court found unconstitutional a law that treated as express advocacy any voter guide analyzing "a candidate's position or votes" published or distributed "within 60 days of an election." Furthermore, in its decision awarding attorneys fees and costs, the court justified charging these fees against the state since the statute "attempted to circumvent legal precedent through the transparent device of a presumption that expenditures made within sixty days of an election are express advocacy." 952 F. Supp. 954 at 348.

Vermont Right to Life v. Sorrell, No. 2:97-CV-286, 1998 WL 601346 (D. Vt. Sept. 9, 1998). This court found unconstitutional a law that required persons spending $500 or more within 30 days of an election on activities that included the name or likeness of a candidate for office to report the expenditures to the state and to the candidate whose likeness appeared in the spot, within 24 hours of making the expenditure.

Proving Corruption Before the Eighth Circuit

As noted previously in the Observer, there are signs that courts are taking seriously the requirement that states meet their burden of showing that restrictions on political speech serve the government's interest in fighting corruption or the appearance of corruption in politics.

The Eighth Circuit's recent opinion in Shrink Missouri Gov't PAC v. Adams, No. 98-2351 (8th Cir. Nov. 30, 1998) (Bowman, J.) found unconstitutional Missouri's campaign contribution limits, which prohibited contributions exceeding $1,075 per election to candidates for governor and other statewide offices, and in districts of over 250,000 in population; $525 to candidates for state senator and in district of 100,000 or more; and $275 to candidates for state representative or in districts of under 100,000.

The State defended these limits by asserting that "corruption and the perception thereof are inherent in political campaigns where large contributions are made." The court was not persuaded by this conclusory argument, citing its decisions in Russell v. Burris, 146 F.3d 563 (8th Cir.), cert. denied, 67 U.S.L.W. 3332 (Nov. 16, 1998) and Carver v. Nixon, 72 F.3d 633 (8th Cir. 1995). "We require some demonstrable evidence that there [are] genuine problems that result from contributions in amounts greater than the limits in place" declared the court.

Mere reliance on the fact that similar limits had then upheld in other contexts (namely in Buckley v. Valeo, 424 U.S. 1 (1976)) was not sufficient. "We will not infer that state candidates for public office are corrupt or that they appear corrupt from the problems that resulted from undeniably large contributions made to federal campaigns over twenty-five years ago. The State therefore must prove that Missouri has a real problem with corruption or a perception thereof as a direct result of large campaign contributions." Although the state offered as evidence an affidavit from the author of the contribution limit legislation, the court found it provided an insufficient factual basis for the state's corruption claims. "The senator did not state that corruption then existed in the system, only that his colleagues believed there was the 'real potential to buy votes' if the limits were not enacted, and that contributions greater than the limits 'have the appearance of buying votes.'"

Whether other circuits adopt the Eighth Circuit's careful review of evidence of corruption remains to be seen. It would seem proper for them to do so. One would hope that "strict scrutiny" would require scrutiny not just of analogous court decisions, but of actual facts presented in a live case before a fact-finder.

Counting to 25,000 Still Perplexes Donors

Individuals under federal law may make only $25,000 per year in federal contributions to PACs, candidates, or parties. While this looks like an easy rule to follow, both savvy and neophyte donors overshoot this limit, and, when detected, face fines from the FEC. (A recently released FEC Matter Under Review, MUR 4790, is a good example). That's because the $25,000 limit in practice contains some twists that can make it difficult for ordinary outside-the-beltway political supporters to know where they stand.

One would probably assume, for instance, that the "per year" part of the rule would require donors to calculate their $25,000 limit based on the year they made the contribution. Not exactly. If a contribution is made to a political party, leadership PAC, or other PAC, it is counted against the limit for the year in which it is made. But if the contribution is made to a candidate, it is counted against the limit for the year the candidate is up for election. This may be five year's hence if the contribution is to a Senator running for reelection.

The unnecessary complexity of this rule serves no useful purpose, and lurks as a trap for the unwary. This rule is a creature of the election law statute (and is codified at Section 441a(a)(3)) so the fault here lies not with the FEC, but with Congress. Perhaps the 106th Congress can pursue true reform of campaign finance laws by simplifying (or eliminating) this headache. Until then, contributors should make sure they understand what kind of recipient is getting their money (e.g. federal or nonfederal? Leadership PAC or campaign committee?) and keep a personal tally with the year of attribution for federal political contributions.

*Allison R. Hayward is an attorney with Wiley, Rein & Fielding in Washington, D.C. None of the views expressed here are necessarily those of the Firm or its clients.


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