Debating campaign speech

Since the Watergate scandal of the 1970s, Congress and the courts have wrestled with how to curb the influence of special-interest money in campaigns without violating the 1st Amendment. Next month the U.S. Supreme Court will return temporarily from its summer break to rehear a case that is likely to readjust the balance between free speech and regulation. In doing so, however, it needn’t relax every restriction on election spending by unions and corporations.

The case involves “Hillary: The Movie,” a documentary critical of then-Sen. Hillary Rodham Clinton that Citizens United, a conservative group, wanted to broadcast during Clinton’s campaign for the 2008 Democratic presidential nomination. The Federal Election Commission ruled that airing the film, even through a cable TV “video on demand” option, would violate the 2002 McCain-Feingold campaign finance law.

Although the primary purpose of that law was to ban “soft money” contributions to political parties, it also imposed restrictions on “electioneering communications” -- radio and TV advertisements funded by corporations or unions that refer to a candidate for federal office and are aired close to an election. An ad wouldn’t explicitly have to advocate the election or the defeat of a candidate. Groups that broadcast such spots also had to disclose who paid for them.

In 2003, the high court rejected a claim that this provision was unconstitutional on its face. But in subsequent decisions, the court has embraced a case-by-case approach to deciding whether such ads are illegal. That became necessary because the regulations were being applied to broadcasts that didn’t resemble the 60-second attack ads, funded by commercial or union interests, targeted by McCain-Feingold.


The Clinton documentary was clearly more than a campaign ad; as a critique of her career, it remains relevant long after Clinton abandoned her presidential campaign. If the government can ban the broadcast of a political ad, a lawyer for the Obama administration conceded during initial arguments in March, then it could stop the publication of a book “if the book contained the functional equivalent of express advocacy.” When a law is so broad that it can justify book-banning, something is amiss.

After the court heard arguments in the case of “Hillary: The Movie,” some legal observers expected it to rule narrowly in favor of Citizens United. For example, the court could have said that a full-length film is not the sort of “advertisement” Congress had in mind. Or it could have ruled that, because viewers had to choose to see the movie, it wasn’t really a broadcast. Or it could have said that there were constitutional problems with treating an ideological, nonprofit group as a corporation just because it received a small amount of support from actual businesses. (Most of the funding for the anti-Clinton film came from individual donations.)

Instead, the court asked lawyers to re-argue the case and address whether it should reconsider two rulings: a 1990 decision upholding a Michigan law preventing corporations from spending on behalf of a political candidate, and the 2003 ruling refusing to invalidate restrictions on electioneering communications across the board. There are good 1st Amendment arguments for overturning both of those decisions, but the court could solve most of the defects of McCain-Feingold without reaching nearly so far -- and without rejecting all limits on corporate political contributions.

Unlike previous laws that prevented unions and corporations from making expenditures “in connection with” a candidate’s campaign, the McCain-Feingold law bars them (for 30 days before a primary election and 60 days before a general election) from paying for ads that mention a candidate. This was an attempt by Congress to short-circuit “sham issue ads” that purported to be about a candidate’s position on some matter of public policy but really were designed to encourage a vote for (or against) the candidate on election day.


The problem, as the court has recognized in recent decisions, is that “electioneering communications” is such a broad term that it can be used to stifle messages that are only tenuously related to an election. Rather than condemn itself to years of deciding which ads meet Chief Justice John G. Roberts Jr.'s test of having “no reasonable interpretation other than as an appeal to vote for or against a specific candidate,” the court should invalidate the ban on ads that don’t explicitly endorse or oppose a candidate.

It can do so without revisiting the 1990 case holding that corporations (and by implication unions) could be prevented from spending funds in connection with a campaign. Nor does it have to invalidate the requirement, which the FEC continues to enforce, that unions and corporations make timely disclosure of the sources of their funds. But it has become clear that McCain-Feingold’s ban on electioneering communications is unworkable, one of the traditional reasons for overturning precedent.

Purists on both sides of the debate are impatient with the sort of distinctions involved in this analysis. For some conservatives, every government regulation of elections -- including public financing and limits on contributions -- is a violation of the 1st Amendment. At the other end of the spectrum are liberals who insist that any restriction is constitutional because “money isn’t speech.” Those views enjoy the benefit of purity, but lead to untenable results -- either the unfettered ability of wealthy interests to influence elections or the strangulation of legitimate political participation.

Citizens and, yes, corporations have the right to express themselves politically, something that often costs money. But when support for a candidate merges into the sort of close relationship that gives rise to an appearance of corruption, Congress can step in. It’s a balancing act, and the Supreme Court holds the scales. In this case, it needs to give greater weight to free speech.