There's "No Such Thing as Too Much Speech": How Advertising Deregulation and the Marketplace of Ideas Can Protect Democracy in America

• Author: Kristen .M Formanek
• Position: J.D. Candidate, The University of Iowa College of Law, 2009
• Pages: 02

J.D. Candidate, The University of Iowa College of Law, 2009; B.A., The University of Iowa, 2006. I would like to thank Professor Todd Pettys for his comments and suggestions during the drafting process and the editors and writers of Volumes 93 and 94 of the Iowa Law Review for their efforts throughout the publication process. I would also like to give special thanks to Emily Sickelka for being my "study buddy," as well as to my fiance, Michael Robinson, and to my family for their love, support, and patience throughout this endeavor.

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I Introduction

During election time, American television viewers face an onslaught of campaign advertising from both ends of the political spectrum. Some advertisements carry a candidate's specific endorsement,¹ others attack opposing candidates,² and still others focus strictly on issues. Recent legislation has targeted this last type-issue advertising-due to its possible undue influence on democratic elections. ³ Issue advertising includes ads that focus on a particular issue, rather than naming a political candidate, and these ads often urge voters to contact their senator or local congressman to recommend a specific political action. Issue ads are controversial because they might subconsciously sway voting behavior. ⁴ As a result of this alleged corruptive potential, the Bipartisan Campaign Reform Act ("BCRA") prohibits corporations and labor unions from sponsoring issue advertisements thirty days before a primary election and sixty days before a general election.⁵ Political-equality theorists and First Amendment activists have criticized section 203, and in 2007, this section provided a focal point for the U.S. Supreme Court in FEC v. Wisconsin Right to Life ("WRTL I/').⁶ In June 2007, a divided Court issued an opinion in WRTL II, and the First Amendment emerged as victor. ⁷ In a plurality opinion that signals a shift toward a less-regulated campaign-finance scheme, the Court found Page 1746 section 2>03 unconstitutional as applied to the ads in question.⁸ According to the Court, section 203 infringed on WRTL's free speech rights as protected under the First Amendment.⁹

This Note advocates deregulating political advertising and trusting American voters. In wrtl ii, the Court emphasized the First Amendment's important place in politics, yet section 203 still exists untouched. Since the Court only found section 203 unconstitutional as applied to WRTL's specific advertisements, it remains unclear how much speech really is too much speech. Congress or the Supreme Court must take action to fix this problem. In doing so, both have much to learn from prior decisions of the Federal Communications Commission ("FCC" or "the Commission") and the Supreme Court itself, as these decisions show a historic pattern of deregulation and a growing faith in the marketplace of ideas. Part II provides background on the political tension surrounding section 203 of the Bipartisan Campaign Reform Act and the Court's difficulty defining "express advocacy." This Part also describes the factual and procedural context of wrtl i and ii. Part III discusses the importance of issue framing in the political-advertisement context; this Part illuminates the perceived, but not actual, collision of two core democratic values-political equality and freedom of speech-and attempts to reframe democratic integrity within the First Amendment. Part IV works to further reconcile these two viewpoints in the context of FCC regulations and Supreme Court jurisprudence and concludes that section 203 and similar political-advertising restrictions greatly infringe on political speech. The government must remain true to its core First Amendment principles and trust America's voters and the already-functioning information marketplace. Part IV also analyzes the administrative and judicial evolutions of thought pertaining to the First Amendment, including the rejection of a strict political-equality rationale and the acceptance of the marketplace-of-ideas concept. The FCC discussion begins with the advent of radio and ends with the repeal of the Fairness Doctrine. The Supreme Court analysis begins with selected cases dating back to 1957 and finishes with the Court's decision in wrtl ii. Finally, in Part V, this Note reemphasizes the Supreme Court's failure to articulate a clear standard in the realm of issue advertising. Since voters ultimately determine the outcome of elections-regardless of money and advertising-the government should abandon regulations that restrict freedom of speech and instead, defer to the marketplace of ideas.

II Background: The Bipartisan Campaign Reform Act Of 2002

On March 27, 2002, President George W. Bush signed the BCRA into law. ¹⁰ The BCRA amended the Federal Election Campaign Act of 1971 Page 1747 ("FECA")¹¹ to address certain problematic areas in federal campaign-finance law. ¹² It changed FECA provisions involving soft-money expenditures, contribution limits, and "electioneering communications."¹³ The latter of these involves what is perhaps the most controversial provision of the BCRA: section 203. In this section, legislators aimed to fix a "loophole" in campaign-finance law that allowed groups to create advertisements specifically designed to influence voting behavior as long as the advertisements appeared to focus on issues.¹⁴ The issue-advertising loophole effectively allowed political action committees ("PACs") and other organizations to evade campaign-advertising restrictions during the most crucial time period preceding an election.

A The Controversy Surrounding Section 203

To address the campaign-finance loophole, the BCRA bans all "electioneering communications."¹⁵ Section 203 defines "electioneering communications" as:

[A]ny broadcast, cable, or satellite communication which-refers to a clearly identified candidate for Federal office; is made within-60 days before a general, special, or runoff election . . . ; or 30 days before a primary or preference election . . . and in the case of a Page 1748 communication which refers to a candidate other than President or Vice President, is targeted to the relevant electorate.¹⁶

The BCRA also includes an alternate definition of electioneering communications in case a court finds the first definition "constitutionally insufficient."¹⁷ This alternate definition prohibits "communication which promotes or supports a candidate . . . or attacks or opposes a candidate . . . (regardless of whether the communication expressly advocates¹⁸ a vote) and which also is suggestive of no plausible meaning other than an exhortation to vote."¹⁹ It appears that Congress intended to completely close the issue advertisement loophole by including this second definition. In fact, though, the alternate definition failed to foreclose litigation regarding issue advertisements.

Soon after-and even before-its enactment, the BCRA suffered criticism from varying points on the political spectrum on both freedom-of-speech and political-equality grounds.²⁰ First Amendment advocates argued that campaign-finance regulations severely limited political speech, while political-equality theorists were concerned that the issue-advertising "loophole" would permit actual or apparent corruption in politics. ²¹ In McConnell v. FEC, the Supreme Court found that issue advertisements thirty to sixty days before elections were "the functional equivalent of express advocacy,"²² which meant the government could regulate the ads within this time period via the BCRA. According to the Court, the primary rationales for such regulation included preventing actual or apparent corruption, preserving integrity in the election process, and instilling confidence in American voters.²³ At the same time, the Court acknowledged that "the Page 1749 interests that justify the regulation of campaign speech might not apply to the regulation of genuine issue ads."²⁴ So, although section 203 survived this initial facial challenge,²⁵ the McConnell decision did not preclude future as-applied challenges. ²⁶

B WRTL I AND II

In 2004, Wisconsin Right to Life, Inc., a nonprofit 504(c)(4) organization, aired a series of advertisements before the Wisconsin primary. ²⁷ These ads, entitled "Wedding," "Loan," and "Waiting," urged viewers to contact Wisconsin Senators Russ Feingold and Herb Kohl and ask them to oppose the senatorial filibuster of President Bush's judicial nominees.²⁸ Although WRTL had planned to continue its advertising campaign through August, the organization realized that the BCRA would ban its ads as of August 15 because the ads would fall within the BCRA's definition of "electioneering communications."²⁹ The organization immediately ceased airing the ads and sued for declaratory and injunctive relief. ³⁰ WRTL argued that, as applied to these ads and "any other materially similar ads it might seek to run," the BCRA's ban on using a nonprofit organization's general treasury funds for electioneering communications infringed on the organization's First Amendment rights to broadcast the ads. ³¹

In WRTL I, the Supreme Court reversed the district court's ruling that McConnell barred any...