Boundary-based restrictions in boundless broadcast media markets: McConnell v. FEC's underinclusive overbreadth analysis.

• Author: Smith, Bradley A.

1. INTRODUCTION

   In 2002, Congress passed the Bipartisan Campaign Reform Act (BCRA), more commonly known as the "McCain-Feingold" campaign finance reform measure. (1) Perhaps the most controversial aspects of that law were provisions dealing with what the Act termed "electioneering communications," broadcast ads that mentioned the name of a candidate within close proximity of an election, regardless of the reason for the mention. These provisions, which we will refer to in shorthand as "brownout" provisions, (2) purport to prohibit any union or incorporated entity from using general treasury funds, and prohibit any person or organization from using any corporate or union donations, to run a broadcast ad mentioning a federal candidate within thirty days of a primary or national convention or sixty days of a general election. (3) In McConnell v. FEC, the electioneering communications provisions were challenged on the grounds that they were unconstitutionally overbroad, but were upheld by the Supreme Court. (4)

   In this Article, we do not seek to refight the theoretical constitutional analysis of McConnell. (5) Rather, we will show that both the three-judge district court panel and the Supreme Court did not, in fact, fully apprehend the breadth of the electioneering communications restrictions, particularly as applied to presidential elections, leading them to substantially understate the impact of the law. This failure is reason for the Supreme Court to revisit the holding of McConnell. Our goal is modest; we merely underscore that the statute is expansive in ways not considered by the Court. Having identified the problem, we hope that further research will provide added guidance on the extent to which BCRA limits what the Court has acknowledged is constitutionally protected speech.

   In Part II of this Article, we review the background of the Bipartisan Campaign Reform Act and in particular its electioneering communications provisions. In Part III, we discuss the Supreme Court's overbreadth analysis of the challenge to the electioneering communications provisions of BCRA. We find that the Court's analysis lacks any meaningful review of the impact of the law, even as the Court understood it to operate. More importantly, in Part IV we use specific market examples to show how the statute, in its actual operation, restricts advertising far beyond the thirty- and sixty-day time frames in which it was discussed by the Court, particularly in presidential elections. In some markets, BCRA restricts ads for a period in excess of 200 days. Additionally, BCRA frequently creates a confusing pattern of alternating brownout periods, making it more difficult to run a coherent issue campaign. Less often, but not infrequently, BCRA creates a discrepancy between brownout times for GOP and Democratic candidates in a market, creating potential equal protection issues.

   We conclude that the Court should revisit these provisions in order to conduct an analysis of BCRA's electioneering communications provisions based on a proper analysis of the law's reach. In doing so, it should place little weight on McConnell, as that case is based on an inaccurate understanding of the law's scope.

2. "ELECTIONEERING COMMUNICATIONS" AND THE BIPARTISAN CAMPAIGN REFORM ACT OF 2002

   The Federal Election Campaign Act (FECA) Amendments of 1974 limited direct financial contributions to federal candidates. (6) The Supreme Court upheld this provision against First Amendment challenge in Buckley v. Valeo on the grounds that the speech involved was "proxy speech," and as such entitled to less constitutional protection than direct speech by an individual. It was also upheld because such restrictions met a compelling government interest in preventing political corruption or the appearance thereof. (7) At the same time, the Court recognized that the threat of corruption was lower when expenditures were independent of a candidate and related to political issues rather than directly to a candidate campaign. It thus held that a statute that regulated "issue" speech, even though that speech might be intertwined with the mention of candidates, was unconstitutionally overbroad. To avoid this overbreadth, it construed the statutory definitions to reach only speech that specifically advocated the election or defeat of a candidate. The Court remained concerned, however, that even this standard was unconstitutionally vague unless limited to "explicit words of advocacy of election or defeat." (8) The Court supplied examples of the type of language, eventually known as "express advocacy," that would constitute "explicit words of advocacy of election or defeat," including words and phrases such as "vote for," "elect," "support," and "defeat." (9) The Court recognized that under this test many campaign ads would go unregulated, but saw the test as necessary to prevent a "chilling" effect on protected speech. (10)

   Over the next two decades political strategists mastered the art of "issue ads," which avoided "express advocacy" but were otherwise indistinguishable from many campaign ads. As spending on these issue ads grew, (11) campaign finance reform advocates sought a new standard that would encompass such ads while meeting the Court's vagueness requirements. The solution, enacted in McCain-Feingold, was to limit what were dubbed "electioneering communications." (12)

   The statutory language governing electioneering communications in BCRA is complex and opaque, (13) but ultimately the provision is relatively simple. An "electioneering communication" is a broadcast, cable, or satellite communication that makes reference to a "clearly identified candidate for Federal office" and is "targeted" to the area in which that candidate is up for election. (14) Ads that mention or visually depict a candidate, including in most cases a president or vice president eligible for another term or a sitting member of the House or Senate, are generally deemed to refer to a "clearly identified candidate," as are references to "your congressman," "the president," or "your Democratic senator." An ad is considered "targeted" if it reaches 50,000 or more viewers or listeners in the relevant area. (15) When these criteria are met, no union or incorporated entity, including incorporated non-profit membership organizations, nor any organization using corporate or union funds may air such an ad for thirty days prior to a primary or the start of a convention or caucus through the date of the primary or the last day of the convention or caucus--and for sixty days before, and the day of, a general election. (16)

3. BCRA AND OVERBREADTH IN MCCONNELL V. FEC

   Unlike the 1974 FECA Amendments, which purported to regulate any ad that had the "purpose of influencing" an election, BCRA's electioneering communications limitations do not suffer from vagueness. One can readily tell if an advertisement mentions or depicts a "clearly identified candidate," and the thirty/sixty-day pre-election time frames provide a bright-line rule for when such an ad is subject to the regulation. Nevertheless, even many proponents of the bill worried that the Supreme Court would find the provision unconstitutional--not on the grounds of vagueness, but on grounds of overbreadth.

   The provision operates on the assumption that the vast majority of advertisements mentioning a candidate close to an election are not really ads about issues and therefore constitutionally protected under Buckley, but are in fact ads about candidates and therefore subject to regulation. By defining ads as "candidate ads" based on a specific proximity to the election, the revised law avoids the vagueness issue. If, however, a large number of ads prohibited by the electioneering communications provision are constitutionally protected "genuine" issue ads, then the law risks being struck down as overly broad.

   BCRA supporters concede that not all ads mentioning a candidate within the thirty/sixty-day timeframes are "election" ads and that issue speech within those time frames can be important. Primary elections for president, House, and Senate are scattered throughout each even-numbered year, mostly when the House and Senate are in session. Even within sixty days of the general election, the House and Senate have frequently been in session in recent years, debating issues such as impeachment of the president, (17) limitations on "partial birth" abortion, (18) judicial nominations, (19) creation of a Cabinet-level Department of Homeland Security, (20) and budget and appropriation bills. (21) In the four election years prior to BCRA, there were over 500 roll call votes in the U.S. House and Senate within the sixty-day window preceding the general election. (22)

   For a statute to be found unconstitutional under the overbreadth doctrine, it must constrain significantly more behavior--in the case of BCRA, political speech--than can be properly regulated under the Constitution. "[T]he overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." (23)

   In determining whether a statute's overbreadth is so substantial as to violate the Constitution, the Supreme Court has held that "substantial overbreadth" cannot be "readily reduced to an exact definition" and that "in short, there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court for it to be facially challenged on overbreadth grounds." (24) In practice, one noted commentator suggests, "substantial overbreadth might be demonstrated by showing a significant number of situations where a law could be applied to prohibit constitutionally protected speech." (25)

   Thus in the district court, a fierce battle was fought among the McConnell litigants about what percentage of advertisements restricted by BCRA's electioneering communications brownout were...