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.
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
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
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.
- See M.C.L.A. §§
169.215(8) & 169.254(4).
- 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).
- 424 U.S. 1 (1976).
- Id. at 44.
- Id. at 44 n. 52.
- Id. at 42.
- 479 U.S. 238, 249 (1986).
- MCFL at 249.
- 9See 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).
- 10807 F. 2d 857 (1987)
(holding that speech need not include any of the words listed
in Buckley to be regulated as express advocacy)
- Furgatch, 802 F. 2d
- Miller, slip op. at
- Id. at 8-9.
- Id. at 11.
- 15FEC v. Christian Action Network, 110 F.3d
1049, 1064 (4th Cir. 1997) (awarding fees and costs).