Tuesday, July 21, 2015
http://blog.constitutioncenter.org/2015/07/constitution-check-whats-the-next-big-controversy-on-campaign-finance/
Lyle is an excellent journalist whose beat is the supreme court, at the invaluable scotusblog.
Here he presents the received wisdom about express advocacy versus issue advocacy.
What makes it topical is that he noticed two cases decided the same day, the Delaware disclosure case and the Wisconsin John Doe case, come out differently. He sees this as a conflict setting up likely supreme court review. While I do think both sides are likely to seek cert, I don't see that the cases are in conflict. They are distinguishable.
Reading Lyle, a reader who isn't an election law wonk might get the impression that a political communication is either express advocacy or issue advocacy. If A then not B, if B then not A.
This is a false dichotomy. A communication might be both or neither.
Instead, the key to understanding express advocacy is that it must be 1) express and 2) advocacy.
McConnell found that empirically most political communication is not express. "Vote for Smith!" is express. "Smith/Jones 2016!" is not. It implies advocacy, but is subject to other possible interpretations. The important distinction is not between candidates and issues, but is between express and implied.
But a communication may refer by name to a candidate and still not be advocacy. There is a good argument that objective journalism is a myth, but let's set that aside for the moment. Lyle covers the court. He reports on decisions. These are political communications. But most of the time, Lyle is not advocating for the majority or the dissent. He's reporting about it. (Sometimes the Goldstein Law Firm has been involved in an advocacy role in a case, and this gets disclosed.)
His reporting is fully protected by the First Amendment. Even if refers to a candidate by name (McConnell, Clinton etc.) it's not advocacy, or at least not express advocacy. He cannot be required to register as a journalist, or obtain a poetic license. Getting a press pass to the court chambers is a different matter.
In Buckley v Valeo, the court found, properly, that discussion of political issues is core speech protected under the First Amendment. Such speech would be chilled if subjected to vague and overbroad regulation. The court was on the verge of tossing the regulation entirely. This is the point that critics of the express advocacy regime miss. The express advocacy rules allow for more government regulation of speech, not less. The court's alternative is to realize the express advocacy regime isn't working, as toss the whole thing, as they did in Citizens United, tossing out the Austin v Michigan Chamber of Commerce ban on speech by corporations.
Instead the court rolled a saving throw. In Buckley v Valeo, the court sliced and diced the act, killing parts, leaving some parts standing, and narrowly construing other parts.
The Delaware case is not vague and overbroad in the way that the Buckley and John Doe rules were.
Instead, it's relatively clear what is to be reported and what isn't, just as in McConnell the definition of "electioneering communication" was set out in detail so people would know if they were covered or not. McConnell was a failed facial challenge to McCain-Feinberg aka BCRA, which has been followed by a deah of a dozen cuts each time an as-applied challenge works its way up to the high court. I read the Delaware case a few days ago, to make sure it didn't address disclaimers, which it doesn't, just some straightforward reporting requirements. Seemed uncontroversial but I haven't read plaintiffs briefs or if I have it was last year and I've forgotten their possibly compelling arguments.
The reason express advocacy hasn't worked to create a safe harbor, is that opponents of political speech keep challenging as express advocacy statements that aren't, with the result that we are back in the land of vagueness and overbreadth. The "functional equivalent" muddle just made that problem worse. The objective of the express advocacy test was to have a bright line rule, so people could know if their political speech was subject to regulation or not. "Functional equivalent" tests remove the bright line, so they are really not the functional equivalent at all.
The court should conclude that the express advocacy regime was a noble experiment that didn't work, and hold that express advocacy is core political speech fully protected by the First Amendment.
Disclosure kills. The persecution, or at least alleged persecution, of the John Doe parties shows how over-regulation mixed with overzealous prosecutors chills speech in ways that are hostile to democratic process.
(this would be the right place to quote justice alito's remarks last week, if i can find them again, where he talks about political speech about candidates as being the core of the first amendment, as opposed to false claims about medals, or animal-trampling porn.)
From the opinion in the Delaware case, it isn't clear that there is the same kind of chill. But that's the opinion written by the victors, and the plaintiff-appellants may have another story to tell. I'll look forward to the cert petition in about 90 days.
Lyle is an excellent journalist whose beat is the supreme court, at the invaluable scotusblog.
Here he presents the received wisdom about express advocacy versus issue advocacy.
What makes it topical is that he noticed two cases decided the same day, the Delaware disclosure case and the Wisconsin John Doe case, come out differently. He sees this as a conflict setting up likely supreme court review. While I do think both sides are likely to seek cert, I don't see that the cases are in conflict. They are distinguishable.
Reading Lyle, a reader who isn't an election law wonk might get the impression that a political communication is either express advocacy or issue advocacy. If A then not B, if B then not A.
This is a false dichotomy. A communication might be both or neither.
Instead, the key to understanding express advocacy is that it must be 1) express and 2) advocacy.
McConnell found that empirically most political communication is not express. "Vote for Smith!" is express. "Smith/Jones 2016!" is not. It implies advocacy, but is subject to other possible interpretations. The important distinction is not between candidates and issues, but is between express and implied.
But a communication may refer by name to a candidate and still not be advocacy. There is a good argument that objective journalism is a myth, but let's set that aside for the moment. Lyle covers the court. He reports on decisions. These are political communications. But most of the time, Lyle is not advocating for the majority or the dissent. He's reporting about it. (Sometimes the Goldstein Law Firm has been involved in an advocacy role in a case, and this gets disclosed.)
His reporting is fully protected by the First Amendment. Even if refers to a candidate by name (McConnell, Clinton etc.) it's not advocacy, or at least not express advocacy. He cannot be required to register as a journalist, or obtain a poetic license. Getting a press pass to the court chambers is a different matter.
In Buckley v Valeo, the court found, properly, that discussion of political issues is core speech protected under the First Amendment. Such speech would be chilled if subjected to vague and overbroad regulation. The court was on the verge of tossing the regulation entirely. This is the point that critics of the express advocacy regime miss. The express advocacy rules allow for more government regulation of speech, not less. The court's alternative is to realize the express advocacy regime isn't working, as toss the whole thing, as they did in Citizens United, tossing out the Austin v Michigan Chamber of Commerce ban on speech by corporations.
Instead the court rolled a saving throw. In Buckley v Valeo, the court sliced and diced the act, killing parts, leaving some parts standing, and narrowly construing other parts.
The Delaware case is not vague and overbroad in the way that the Buckley and John Doe rules were.
Instead, it's relatively clear what is to be reported and what isn't, just as in McConnell the definition of "electioneering communication" was set out in detail so people would know if they were covered or not. McConnell was a failed facial challenge to McCain-Feinberg aka BCRA, which has been followed by a deah of a dozen cuts each time an as-applied challenge works its way up to the high court. I read the Delaware case a few days ago, to make sure it didn't address disclaimers, which it doesn't, just some straightforward reporting requirements. Seemed uncontroversial but I haven't read plaintiffs briefs or if I have it was last year and I've forgotten their possibly compelling arguments.
The reason express advocacy hasn't worked to create a safe harbor, is that opponents of political speech keep challenging as express advocacy statements that aren't, with the result that we are back in the land of vagueness and overbreadth. The "functional equivalent" muddle just made that problem worse. The objective of the express advocacy test was to have a bright line rule, so people could know if their political speech was subject to regulation or not. "Functional equivalent" tests remove the bright line, so they are really not the functional equivalent at all.
The court should conclude that the express advocacy regime was a noble experiment that didn't work, and hold that express advocacy is core political speech fully protected by the First Amendment.
Disclosure kills. The persecution, or at least alleged persecution, of the John Doe parties shows how over-regulation mixed with overzealous prosecutors chills speech in ways that are hostile to democratic process.
(this would be the right place to quote justice alito's remarks last week, if i can find them again, where he talks about political speech about candidates as being the core of the first amendment, as opposed to false claims about medals, or animal-trampling porn.)
From the opinion in the Delaware case, it isn't clear that there is the same kind of chill. But that's the opinion written by the victors, and the plaintiff-appellants may have another story to tell. I'll look forward to the cert petition in about 90 days.
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