The Federalist Society

Election Law Observer

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

August 1, 1998

Allison R. Hayward, Allison R. Hayward, Allison R. Hayward

Cases, cases, cases

Several recent court decisions should be of interest to activists and campaign finance counsel.

Russell v. Burris, No 97-3922 (8th Cir. June 4, 1998), provides an excellent and timely analysis of the evidentiary burden governmental campaign finance restrictions must overcome to pass strict scrutiny.

The Supreme Court's decisions for years have required that regulations burdening campaign contributions and expenditures must be shown by the government to serve a compelling governmental interest in the prevention of corruption and the appearance of corruption. Judge Morris Amold, writing for the court in Russell, takes Supreme Court precedent seriously. Rarely does a court scrutinize the government's case thoroughly to determine whether this burden has been met in a specific situation. This court does.

In evaluating the constitutionality of Arkansas's extremely low contribution limits ($300 per statewide candidate, $200 for PACs and $100 for other offices) it first noted that the record showed that "no defendant provided any credible evidence to the trial court of actual undue influence or corruption stemming from large contributions."

The Russell court then rejected the state's claim that the fact a legislator who promoted legislation favorable to the tobacco industry, also received $2,700 from sources related to the tobacco industry, demonstrated an appearance of corruption. Assuming the public had an impression that this was corrupt, "we must determine whether that public perception was reasonable ... That [the legislator] received political contributions from those whose interests he tended to support hardly indicates, on its own, any corruption." The state provided no evidence that, for example, legislators changed position based upon contributions, or sought to conceal contributions, facts which in the court's view would indicate the presence of corruption. "If it were reasonable to presume corruption from the fact that a public official voted in a way that pleased his contributors, legislatures could constitutionally ban all contributions except those from the public official's opponents, a patent absurdity. That would spell the end to the political right, protected by the First Amendment, to support a candidate of one's choice."

Furthermore, the state could not justify the low threshold set by its contribution limits. The legislators used by the state as examples of "appearance corruption" had not accepted contributions larger than $1,000 from any one source - and the court observed that "$1,000 is simply not a large enough sum of money to yield, of its own accord and without further evidence, a reasonable perception of undue influence or corruption." The law's $100 and $300 limits were so small, concluded the court, that they constituted a "difference in kind" from the $1,000 limit upheld in Buckley v. Valeo, could not be justified by the state's interest in preventing corruption or the appearance of corruption, and were thus unconstitutional.

Since $1,000 today is roughly a third the value represented by $1,000 in 1976, one might also wonder whether the $1,000 federal limit is justified by a governmental interest in preventing corruption or the appearance of corruption.

FEC v. Akins, 118 S. Ct. 1777 (1998) continues its long strange trip through the federal judicial system: This case was brought by a group of voters who disagreed with the FEC's administrative ruling that the American Israel Public Affairs Committee (AIPAC) was not a federal political committee. Federal election laws define a political committee as a group that has accepted or made contributions or expenditures of more than $1,000 in a year. This definition has been qualified by court decisions and FEC administrative interpretation that also require that a major purpose of the group must be the making of contributions or expenditures.

The district court found for the FEC, and after some consideration and reconsideration, the D.C. Circuit reversed, finding that the "major purpose test" was an improper interpretation of FECA as it related to groups that make contributions (though the standard was and is still in effect for evaluating expenditures).

The Supreme Court first determined that the litigants had standing as parties aggrieved by the FEC's administrative dismissal of the AIPAC complaint, determining that their injury as voters (lack of access to information regarding AIPAC's donors) was sufficient for prudential as well as constitutional standing purposes.

But instead of coping with the major purpose test, the Court noted that if AIPAC's activities were permissible internal conununications with its members, they would be exempt from the definition of "expenditure" or "contribution." Observing that the FEC was engaged in a rulemaking on the definition of "membersbip" (discussed at length in the last Election Law Observer) the Court armounced that it would "permit the FEC to address, in the first instance, the issue presented ..."

In sum, the Supreme Court in Akins has remanded this matter to the FEC, where the agency has already determined that no case should be brought, to see whether a rule the FEC has yet to craft (and which itself will be the likely subject of litigation) provides another rationale for not pursuing the matter.

In North Carolina Right to Life v. Bartlett, No. 5:96-CV-835 (E.D.N.C. Apr. 30, 1998) the court considered a number of provisions of North Carolina's campaign fmancing law. One was the state's ban on contributions by lobbyists to certain state officials during the legislative session. The court found that this law failed to pass strict scrutiny, because, assuming that it served a compelling state interest, it was not narrowly tailored. Afrer all, said the Bartlett court, it applied to challengers are well as incumbents, and to small as well as large contributions. This decision enters new territory (from what I've found) by overturning restrictions on contributions from lobbyists -- a common campaign finance provision found in a number of state's laws.

Preserving the right to fib about the other side, the Washington State Supreme Court in State v. 119 Vote No, No. 64332-6 (June 11, 1998) held that a state law prohibiting any person from sponsoring, with actual malice, a political advertisement containing a false statement violated the First Amendment. The advertisement at issue opposed the state's "death with dignity" initiative, declaring that the initiative would invite assisted suicide without sufficient safeguards. The trial court determined that the advertisement was not materially false. The State Supreme Court didn't reach the advertisement's text, but found instead that the law itself was unconstitutional. Among other observations, it compared this law to the Sedition Act of 1798, since both elevated the state as the arbiter of truth, rather than relying on open public debate to sort out lies from facts. "Ultimately, the State's claimed compelling interest to shield the public from falsehoods during a political campaign is patronizing and paternalistic" wrote the court.

The Bogus Case Against Issue Advertisements

Campaign finance reformers have lately lamented that Congress won't "do something" about "issue ads." While some might believe that vigorous debate of the issues is a good thing, the reformers are quick to contend that in fact all that's happening in issue ads is the clever repackaging of candidate ads. "No issues here," they seem to say, "just politics as usual."

They usually offer as proof a study released by the Annenberg Public Policy Center (funded by the Pew Charitable Trusts) that purports to catalogue the enormity (a purported $150 million in the 1996 election cycle), negativity, and pervasiveness of issue ad activity during the 1996 campaign.

My reading of this report indicates, however, that it proves no such thing. For starters, the report counts advertisements without accounting for frequency of broadcast, so although the study identifies 27 groups that engaged in alleged issue advocacy only a handful did so on any great scale.

And the study bootstraps advertisements that are part of perennial lobbying and communications efforts in with campaign-related issue ads. For instance, it includes among "issue ads" pieces run by the Arthur S. De Moss Foundation against abortion (the "Life - What a Beautiful Choice" ads), and by the Human Rights Campaign on job discrimination against homosexuals. It also discusses 1997 activity (most of which is related to legislation) even though it says that the study is confined to "who did what with issue advocacy during the last campaign." Although the assertions made about issue ads are relied on by, for example, Norm Ornstein (in Roll Call June 11, 1998) and Congressional Quarterly (June 16, 1998), you may want to think twice before you repeat them in your work.

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


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