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
Proving Corruption Before the Eighth
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
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
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
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 (AHayward@wrf.com)
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.