Friday, August 26, 2005

Notes from GOP v PDC
Goes with story immediately below, still in progress.

REPUBLICAN PARTY v. PDC July 2000 141 Wn.2d 245
Where a statute burdens political speech, the burden is on the government to justify the restriction. State ex rel. Public Disclosure Comm'n v. 119 Vote No.! Comm., 135 Wn.2d 618, 624, 957 P.2d 691 (1998).
The Court stated that "[i]t is clear that a primary effect of the[] expenditure limitations [in FECA] is to restrict the quantity of campaign speech by individuals, groups, and candidates. The restrictions, while neutral as to the ideas expressed, limit political expression 'at the core of our electoral process and of the First Amendment freedoms.' " Id. at 39 (quoting Williams v. Rhodes, 393 U.S. 23, 32, 89 S. Ct. 5, 11, 21 L. Ed. 2d 24 (1968)).«3»
However, as to expenditures, which involve core political speech, strict scrutiny applies. Buckley, 424 U.S. at 44-45; see Mclntyre v. Ohio Elections Comm'n, 514 U.S. 334, 347,115 S. Ct. 1511,131 L. Ed. 2d 426 (1995) ("[w]hen a law burdens core political speech, we apply 'exacting scrutiny,' and we uphold the restriction only if it is narrowly tailored to serve an overriding state interest"). This standard applies to political speech concerning election issues as well as to political speech concerning candidates for office, as both are core political speech.
The right to speak out at election time is one of the most zealously guarded under the First Amendment. Monitor Patriot Co. v. Roy, 401 U.S. 265, 271-72, 91 S. Ct. 621, 28 L. Ed. 2d 35 (1971).

Now it gets tricky:
"Buckley adopted the 'express advocacy' requirement to distinguish discussion of issues and candidates from more pointed exhortations to vote for particular persons." Massachusetts Citizens for Life, 479 U.S. at 249 (unanimous Court on this point). In Massachusetts Citizens for Life, Inc., the Court found such exhortations where a publication urged voters to vote for pro-life candidates, and identified and provided pictures of specific candidates fitting that description. The Court said that "[t]he fact that this message is marginally less direct than 'Vote for Smith' does not change its essential nature. The [publication] goes beyond issue discussion to express electoral advocacy." Id.«9»he most important thing to bear in mind when addressing the issue advocacy/express advocacy distinction is that to preserve core First Amendment freedoms, the standard applied is an exacting one, with any doubt about whether a communication is an exhortation to vote for or against a particular candidate to be resolved in favor of the First Amendment freedom to freely discuss issues.

If speakers are not granted wide latitude to disseminate information without government interference, they will "steer far wider of the unlawful zone." Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958), thereby depriving citizens of valuable opinions and information. This danger is especially acute
when an official agency of government has been created to scrutinize the content of politicalexpression, for such bureaucracies feed upon speech and almost ineluctably come to view unrestrained expression as a potential "evil" to be tamed, muzzled or sterilized. United States v. National Committee for Impeachment, 469 F.2d 1135, 1142 (2d Cir. 1972).in order to assure that general political speech is not restricted, election-related speech must be narrowly defined, even if to do so results in some election-related speech evading regulation. Richard Briffault, Issue Advocacy: Redrawing the Elections/Politics Line
Furgatch, 807 F.2d at 864. The court explained: First, speech is "express" only if it is unmistakable and unambiguous in its meaning. Second, speech is "advocacy" only when it presents a clear plea for some kind of action. Id. Speech that informs voters about a candidate without a call for action is not express advocacy. Finally, in order to be "express advocacy," the speech must be clear that the action it is calling for is the election or defeat of a candidate. If reasonable minds could differ as to whether the speech calls for a vote for or against a candidate, or calls for some other kind of action, the speech is not express advocacy. Id. at 864-65.
Issue advocacy thus does not become express advocacy based upon timing. The right to freely discuss issues in the context of an election, including public issues as they relate to candidates for office, is precisely the kind of issue advocacy the Court recognized was beyond the reach of regulation.

I conclude that this case is controlling authority, and that the court erred as a matter of law in finding that a) there is no longer an express advocacy requirement and b) that there was express advocacy here. The state supreme court may decide, in light of McConnell, to revisit its holdings on express advocacy constructions of vague and speech-chilling statutes, but until it does so, its decision remains binding on the lower court. McConnell did not overrule Valeo on this point.
I have yet to sort through the case law as to the state constitutional claim, but I think it is equally strong and compelling. Voter's Education Committee v WA PSC should be reversed. I welcome help from anyone who would like to work with me to turn these rough notes into an amicus brief or other more formal presentation.

Update Friday: I've now read the Chamber's brief. It makes the same points I have, except that it uses "issue advocacy" where it means "non-express advocacy", and does not address state constitutional issues.

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