Michigan Issue Ad Ruling Reinforces Constitutional Protections

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

December 1, 1998

Charles R. Spies

Will the "campaign reformers" ever learn? Time after time federal courts have struck down restrictions on "issue advocacy," yet the Federal Election Commission (FEC) and legislators on the national and state levels persist with attempts to regulate core First Amendment protected speech.

On September 16, 1998, a federal court struck down Michigan's recently enacted rule prohibiting issue advocacy that mentioned a candidate's name within 45 days of an election. While the court's decision was consistent in that it simply upheld long established precedent, the ruling is significant because the Michigan law is almost identical to the one still being pushed on a national level in the McCain-Feingold and Shays-Meehan legislation. The Michigan ruling in essence telegraphs the punch-line: Shays-Meehan is unconstitutional. Now the pertinent question has become whether Congress will start over with workable and constitutional reform proposals, or whether the "reformers" will maintain their untenable position.

Right to Life of Michigan, Inc. v. Miller

In July 1998, Michigan's Secretary of State Candice Miller promulgated Rule 169.39b, stating that the sponsor of a "communication" made within 45 days prior to an election and containing the name or likeness of a candidate would now fall under Michigan's campaign finance law, which prohibits the use of union or corporate general treasury funds, and includes both criminal and civil penalties.1 Thus, for example, if it were late September 1998 and the Michigan legislature were still in session and hotly debating whether to raise the minimum wage or not, neither the AFL-CIO or the Michigan Chamber of Commerce could legally buy advertisements naming the local state representative and urging concerned citizens to call and voice their views regarding the minimum wage legislation.

The administrative rule was promptly challenged, and on September 16, 1998, just days after oral argument, Judge Bell of the U.S. District Court for the Western District of Michigan struck down the rule as unconstitutional in Right to Life of Michigan, Inc. v. Miller.2

The Miller court's analysis began with the Supreme Court's seminal decision in Buckley v. Valeo.3 Buckley explains that limitations on expenditures are constitutionally permissible only for communications that "in express terms advocate the election or defeat of a clearly identified candidate for federal office."4 Furthermore, Buckley's famous "footnote 52" provides a list containing express words of advocacy of election or defeat (vote for, defeat, support, etc.).5 Although terms other than those listed in footnote 52 may incidentally tend to influence the election or defeat of a candidate, that is only because "[c]andidates, especially incumbents, are intimately tied to public issues involving legislative proposals and governmental actions."6 The Buckley Court explained that the bright-line test of express advocacy was necessary to avoid vagueness problems with statutes that impermissibly burden the constitutional right of free expression.

The Miller court's analysis then progressed to the Supreme Court's next major reaffirmation of the express advocacy requirement, in Federal Election Commission v. Massachusetts Citizens for Life ("MCFL").(7) MCFL explained that a corporation's expenditure must constitute "express advocacy" in order to be subject to restrictions on independent spending.8 Thus, the bright line was confirmed, although it may err on the side of permitting speech that influences the election process, because such a standard avoids restricting, in any way, discussion of public issues.9

Michigan's response in Miller to these arguments was to assert that the Ninth Circuit's ruling in Federal Election Commission v. Furgatch,10 would permit Michigan to regulate speech not containing words of express advocacy. The Ninth Circuit in Furgatch broadened the definition of "express advocacy" to include advocacy that is susceptible to no other reasonable interpretation than an exhortation to vote for or against a specific candidate (but does not necessarily require express words of advocacy).11

The Miller court rejected this argument because the language of Michigan's 45-day Rule did not pass muster even under the arguably more lenient contextual analysis suggested in Furgatch.12 Michigan's Rule prohibited a candidate from being named within 45 days of an election without regard to the context in which the name was found. In addition to prohibiting express advocacy, the Rule prohibited issue advocacy and non-advocacy as well, making it clearly overbroad. The Rule prohibited any mention of a candidate's stance with respect to a vote that is to be held within the 45-day period, and "there can be no real dispute that Rule 169.39b is constitutionally overbroad."13

Michigan argued that the limited 45-day time period meant that it was narrowly tailored to serve the compelling state interest of preserving the integrity of the electoral process. The Miller Court replied that while the time period was short, it involved a critical time period for communications because if the legislature was still in session and there was pending legislation, that is the time when an issue oriented organization's grassroots lobbying efforts would be most important. A 45-day blackout on using names would protect incumbents seeking re-election from grassroots lobbying efforts on pending legislation. Michigan's legislature often is still in session during the 45-day period prior to the general election, and with the blackout rule, incumbents would soon learn to schedule votes on controversial legislation during the blackout period and thus avoid unwanted publicity and attention.14

National Implications

Issue advertisements are not a new development. Back in 1974, Congress first sought to limit issue ads with legislation regulating expenditures "relative to a clearly identified candidate," just as Michigan's recent Rule regulated communications using "the name or likeness of one or more specific candidates." This 1974 federal law was struck down in Buckley for being vague and constitutionally impermissible. Ironically, rather than learn from the prior Supreme Court ruling, the crafters of Michigan's Rule made it even more vague, and therefore less permissible, by substituting the ambiguous term "likeness" for "clearly identified candidate."

When the FEC asserted a similar argument to regulate issue advocacy, the U.S. Court of Appeals for the Fourth Circuit recently explained that prohibiting this type of speech would "dispossess corporate citizens of their fundamental right to engage in the very type of political issue advocacy the First Amendment was intended to protect."15 Even more forcefully, the Fourth Circuit stated that in the face of unequivocal Supreme Court authority, an argument that "no words of advocacy are necessary to expressly advocate the election of a candidate," could not be advanced in good faith.16 Hence, when politicians and newspaper editorial pages push for legislation limiting issue advocacy, it is clear that they are playing politics rather than proposing serious (and constitutional) policy alternatives.

Finally, the only thing more constitutionally suspect than Congress or state legislatures banning issue ads, is for the FEC or state agencies to do so by administrative rule. The administrative rule in Michigan was promptly struck down, and should the FEC in the future carry out its threatened administrative rule limiting issue advocacy, the ruling will almost certainly face the same fate as Michigan's rule. After all, it would turn the Supreme Court's established jurisprudence on its head for an agency rule to ban what the Supreme Court said legislatures cannot regulate.

Such rule-making exercises, even when quickly struck down by courts, are not without both financial costs and costs to the democratic process. Financially, although Secretary Miller's office has indicated that it will not appeal the court's ruling, the taxpayers of Michigan have already been forced to fund a defense of her administrative Rule. Coming on the heels of the Fourth Circuit assessing attorney's fees against the FEC for making a bad faith argument to restrict issues advocacy in Christian Action Network, bureaucrats and legislators risk raising the public's ire should they continue with new issue advocacy regulations. The cost to the democratic process is even greater than quantifiable financial costs. Administrative rules and legislation designed to suppress speech on political topics, despite being subsequently struck down in court, inevitably have a lasting chilling effect on the free speech and democratic participation of political and issue organizations.

As always with election law regulations, the law of unintended consequences will also be observed. The Miller court noted that a 45-day blackout period on using names before an election would protect incumbents by shielding them from grassroots lobbying efforts on pending legislation. The undemocratic nature of a blackout period goes even further, however, because paid lobbyists could almost certainly fill in the gap. Surely the promoters of Michigan's Rule and Shays-Meehan legislation could not intentionally be trying to increase the influence of paid lobbyists, could they?

Constitutional scholar Bradley Smith had noted that debates about limiting issue advocacy have a surreal air about them because the proposals being hotly debated, even if passed, will quickly be struck down as unconstitutional. The definitive nature of the Miller ruling should serve as yet another nail in the coffin of misguided (and unconstitutional) proposals to limit issue advocacy.

*Charles R. Spies is an attorney specializing in election law at Carr, Goodson, Lee & Warner in Washington, D.C.

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  1. See M.C.L.A. §§ 169.215(8) & 169.254(4).
  2. No. 1:98-CV-567 (W.D.M.I. Sept. 16, 1998)(prevailing plaintiff represented by James Bopp, Jr., Chairman of the Election Law Subcommittee of the Federalist Society Free Speech and Election Law Practice Group).
  3. 424 U.S. 1 (1976).
  4. Id. at 44.
  5. Id. at 44 n. 52.
  6. Id. at 42.
  7. 479 U.S. 238, 249 (1986).
  8. MCFL at 249.
  9. See Maine Right to Life Committee, Inc. v. Federal Election Com'n, 914 F. Supp. 8, 12 (D. Me.), aff'd, 98 F.3d 1 (1st Cir. 1996), cert. denied, 118 S. Ct. 52 (1997).
  10. 807 F. 2d 857 (1987) (holding that speech need not include any of the words listed in Buckley to be regulated as express advocacy)
  11. Furgatch, 802 F. 2d at 864.
  12. Miller, slip op. at 6.
  13. Id. at 8-9.
  14. Id. at 11.
  15. FEC v. Christian Action Network, 110 F.3d 1049, 1064 (4th Cir. 1997) (awarding fees and costs).
  16. Id.