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The End of Sham Issue Advocacy: the Case to Uphold Electioneering Communications in the Bipartisan Campaign Reform Act of 2002

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The End of Sham Issue Advocacy: the Case to Uphold Electioneering Communications in the Bipartisan Campaign Reform Act of 2002 University of Minnesota Law School Scholarship Repository Minnesota Law Review 2003 The ndE of Sham Issue Advocacy: The aC se to Uphold Electioneering Communications in the Bipartisan Campaign Reform Act of 2002 Andrew Pratt Follow this and additional works at: https://scholarship.law.umn.edu/mlr Part of the Law Commons Recommended Citation Pratt, Andrew, "The ndE of Sham Issue Advocacy: The asC e to Uphold Electioneering Communications in the Bipartisan Campaign Reform Act of 2002" (2003). Minnesota Law Review. 775. https://scholarship.law.umn.edu/mlr/775 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Minnesota Law Review collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. Comment The End of Sham Issue Advocacy: The Case to Uphold Electioneering Communications in the Bipartisan Campaign Reform Act of 2002 Andrew Pratt* The 2002 election year marked the end of political campaigns as we know them. Candidates for federal office must now contend with the Bipartisan Campaign Reform Act of 2002 (BCRA),1 which transforms how future elections will run. The BCRA imposes disclosure requirements on campaign- related communications 2 and prohibits the use of "soft money" by political parties.3 President George W. Bush signed the * J.D. Candidate 2004, University of Minnesota Law School; B.A. 2000, University of Denver. The author would like to thank Professor David Schultz, Jeff Harrington, Jayna Mathieu, and the members of the Minnesota Law Review for their helpful insights. The author would especially like to thank Erin Fresvik, soon to become Erin Pratt, for her unlimited kindness and support. 1. Pub. L. No. 107-155, 2002 U.S.C.C.A.N. (116 Stat.) 81. The bill is commonly known as "McCain-Feingold," after its main Senate co-sponsors, Senators John McCain (R-AZ) and Russell Feingold (D-WI). The main House of Representatives co-sponsors were Christopher Shays (R-CT) and Martin Meehan (D-MA). 2. Id. §§ 201-204. For a further discussion of this issue, also known as "electioneering communications," see infra notes 15-22 and accompanying text. 3. BCRA § 101, 2002 U.S.S.C.A.N. (116 Stat.) at 82-86. "Soft money" is commonly defined as money raised outside the contribution limits set forth in the Federal Election Campaign Act (FECA), 2 U.S.C. § 431 (1971). Under the FECA, a person may donate $1,000 per federal candidate, per election. See Buckley v. Valeo, 424 U.S. 1, 7 (1976) (per curiam). These donations are generally known as "hard money." Once these limits are met, persons still wishing to donate may give unlimited amounts of soft money to the candidate's political party, "with the understanding that the contribution to the party will produce increased party spending for the candidate's benefit." Fed. Election Comm'n v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431, 447 (2001). The BCRA also contains many miscellaneous provisions, none of which will be covered in this Comment. Among other things, the BCRA prohibits 1663 1664 MINNESOTA LAW REVIEW [Vol 87:1663 BCRA into law on March 27, 2002,4 and its constitutionality was immediately challenged on First Amendment grounds by a host of plaintiffs, chiefly Senator Mitch McConnell. 5 The BCRA's controversial nature spotlights the inherent tension between regulation of political campaigns and free speech. On one hand, with soft money donations (and corporate scandals) at an all-time high,6 the general public may be eager to put the brakes on runaway campaign spending.7 On the other hand, any restrictions on campaign financing may also violate the First Amendment. 8 A three-judge panel in a federal district court is currently weighing each side of the issue, 9 and the losing party will almost certainly appeal directly to the Supreme Court.10 The Supreme Court has a number of campaign finance candidates from fundraising on federal property, strengthens the ban on donations from foreign nationals, and regulates donations to presidential inauguration committees. See BCRA §§ 302, 303, 308, 2002 U.S.S.C.A.N. (116 Stat.) at 96, 103. 4. See Press Release, Office of the Press Secretary, President Signs Campaign Finance Reform Act (Mar. 27, 2002), http://www.law.stanford.edu library/campaignfinance/signing.statement.327.html. 5. See Plaintiffs' Second Amended Complaint for Declaratory and Injunctive Relief, McConnell v. Fed. Election Comm'n, No. 02-0582 (D.D.C. May 7, 2002), http://lawschool.stanford.edu/library/campaignfinance/mcconnell -v-feccomplaint50702.pdf. Senator McConnell is a Republican from Kentucky. 6. See, e.g., Seth P. Waxman, Free Speech and Campaign Reform Don't Conflict, N.Y. TIMES, July 10, 2002, at A21 ("After Enron and the Lincoln Bedroom, does anyone doubt that enormous political contributions provide donors with disproportionate access to elected federal officials?"); Common Cause, Soft Money Laundromat Donor Profiles, at http://www.commoncause.or g/laundromat/stat/topdonorsOl.htm (last visited Feb. 8, 2003) (listing total soft money donations during the 2001-2002 election cycle to Republicans at $161.4 million and to Democrats at $120.8 million). 7. See, e.g., ELIZABETH DREW, CITIZEN MCCAIN 2 (2002) (noting that over six million people voted for campaign finance reformer McCain in the 2000 Republican presidential primary election). 8. U.S. CONST. amend. I ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."). 9. See The Campaign & Media Legal Ctr., McConnell v. FEC: Status Update, at http://www.camlc.org (Nov. 7, 2002). 10. The BCRA provides for expedited review. A challenge is first filed with a three-judge court in the United States District Court for the District of Columbia, with an appeal to be directly heard by the United States Supreme Court. BCRA, Pub. L. No. 107-155, § 403, 2002 U.S.S.C.A.N. (116 Stat.) 81, 113-14. 2003] THE END OF SHAM ISSUE ADVOCACY 1665 precedents to guide its path.11 The seminal case on this issue is Buckley v. Valeo.12 These cases suggest that the Court is hospitable to campaign finance reform, especially in the area of 3 disclosure requirements for "electioneering communications."1 Although the BCRA also prohibits the use of soft money by political parties, this Comment focuses solely on the constitutionality of the Act's electioneering communication disclosure provisions. 14 This Comment argues that the BCRA's electioneering disclosure regulations are constitutional. Part I delineates the BCRA's electioneering provisions. Part II evaluates the Supreme Court's standard in Buckley v. Valeo and its evolution in subsequent cases. Part III argues that the BCRA's electioneering provisions are constitutional under the Buckley framework. Finally, Part IV analyzes Senator McConnell's complaint and determines that it must fail because the BCRA is narrowly tailored to fulfill compelling governmental interests. 11. See, e.g., McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 348-49 (1995) (holding that Ohio's campaign disclosure regulations do not apply to an individual pamphleteer); Austin v. Mich. State Chamber of Commerce, 494 U.S. 652, 669-70 (1990) (holding that a nonprofit business-oriented corporation must comply with Michigan's campaign disclosure regulations); Fed. Election Comm'n v. Mass. Citizens for Life, Inc., 479 U.S. 238, 259 (1986) (holding that campaign disclosure regulations do not apply to a nonprofit, political-oriented corporation). 12. 424 U.S. 1, 35, 84 (1976) (per curiam) (holding that Congress may constitutionally regulate certain forms of political speech, such as campaign contributions and disclosure of communications). 13. The BCRA defines electioneering communications as campaign- related advertisements aired in close proximity to a primary or general election. See infra notes 15-22 and accompanying text. 14. For discussions on soft money limitations, see generally Robert F. Bauer, Going Nowhere, Slowly: The Long Struggle over Campaign Finance Reform and Some Attempts at Explanation and Alternatives, 51 CATH. U. L. REV. 741 (2002); Vincent Blasi, Free Speech and the Widening Gyre of Fund- Raising: Why Campaign Spending Limits May Not Violate the First Amendment After All, 94 COLUM. L. REV. 1281 (1994); Richard Briffault, Campaign Finance, the Parties and the Court: A Comment on Colorado Republican Federal Campaign Committee v. Federal Elections Commisson, 14 CONST. COMMENT. 91 (1997); Richard L. Hasen, Shrink Missouri, Campaign Finance, and "The Thing that Wouldn't Leave," 17 CONST COMMENT. 483 (2000); Lisa P. Howle, Campaign Finance Reform: Meaningful Reform Impinges on Unfettered PoliticalSpeech, Violating the FirstAmendment, 75 U. DET. MERCY L. REV. 143 (1997); Stephanie P. Manson, When Money Talks: Reconciling Buckley, the FirstAmendment, and CampaignFinance Reform, 58 WASH. & LEE L. REV. 1109 (2001). 1666 MINNESOTA LAW REVIEW [Vol 87:1663 I. THE BIPARTISAN CAMPAIGN REFORM ACT OF 2002 Section 201 of the BCRA introduces the phrase "electioneering communication" into the campaign finance lexicon. 15 These communications are defined as any broadcast, cable, or satellite advertisement that refers to a clearly identified candidate for federal office and is targeted to the relevant electorate 16 within sixty days before a general election or thirty days before a primary election.' 7 Once an expenditure is defined as an electioneering communication, the BCRA regulations attach.' 8 An entity funding communications that cost $10,000 or more and are targeted to the relevant electorate must disclose its identity, its principal place of business, and the elections to which the electioneering communications pertain.
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