“Where the First Amendment is implicated, the tie goes to the speaker, not the censor.”

FEC v. Wisconsin Right to Life

On the Election Law mailing list, which has a high noise-to-signal ratio but often has valuable information and opinions, a debate is raging between Professor Brad Smith, a former Chairman of the Federal Election Commission and founder of the Institute for Free Speech, and a list participant named Jeff Hauser (I don’t know which Jeff Hauser this is) over a National Public Radio report on whether the National Rifle Association used contributions from Russian nationals to influence the 2016 presidential election. The NPR story says, in part, that because the NRA has different financial accounts for its different entities (what most people think of as “the NRA” is a 501(c)(4) social welfare advocacy organization, but there is also a charitable organization and a political action committee), its reporters cannot determine whether Russian money filtered through into American campaign activities. “While the NRA claims it does not receive foreign money for election purposes, the movement of its money among accounts could make it difficult, if not impossible, to track how the money is spent since it is not isolated or sequestered.”

Actually, that is an extraordinarily-ignorant statement for NPR to make, since almost all expenditures for political activities, no matter what type of organization makes them, are reportable and trackable. They must be reported to the Federal Election Commission and, if made by tax-exempt organizations reporting to the Internal Revenue Service, must be reported to the IRS. Every organization which has to report such expenditures must “isolate[] or sequester[]” the money to spend and report it compliantly. And it would be no excuse to say that one tax-exempt organization could transfer funds to another (for example, a 501(c)(3) charity, which cannot make political expenditures, could transfer the funds to a 501(c)(4) advocacy organization, which could make such expenditures), since the donating organization, if it knew or believed that its contribution would be used for political purposes, would have to report the transfer in any case, and likely would have to indicate that the funds would be used for a political expenditure. Indeed, under IRS rules, charities generally have to demonstrate that they have prohibited the use of any grants to other organizations for political purposes.

Maybe NPR was referring to the “fungibility” theory, which says that a charity will give non-political dollars to an advocacy group to free up other dollars the advocacy group can use for political purposes, but its statement is far too broad for that. Besides, the Supreme Court has soundly rejected the idea that since one part of an allied group of sister organizations (actually a term of art in tax-exempt organization law) is political active, the activity must also taint all the other members of the group. FEC v. Wisconsin Right to Life, (colloquially known as WRTL II). Indeed, the Supreme Court said that the same theory applies to protect issue ads even if the organization’s other activities are expressly political. “WRTL does not forfeit its right to speak on issues simply because in other aspects of its work it also opposes candidates who are involved with those issues.” The ads must be considered on their own merits, not “could be” tests or “context.”

More likely, NPR has fallen for the fallacy that Jeff Hauser has offered: that funds used for “issue ads” are actually used for political activities. As the Supreme Court explained in WRTL II, “a genuine issue ad [for example]… focus[es] on a legislative issue, take[s] a position on the issue, exhort[s] the public to adopt that position, and urge[s] the public to contact public officials with respect to the matter.” It does not include any “indicia of express advocacy.” Yet Hauser wrote on Jan. 20, “‘Issue ads’ are known to be a falsely narrow dumb legalism by anyone who works in electoral politics.”

Actually, the “legalism” of “issue ad” is quite narrow, because all regulation of speech must be narrowly tailored to be constitutional. And it isn’t “false” because the Supreme Court requires it to be very precise to be constitutional, as it did in 2007 in an extensive discussion in FEC v. Wisconsin Right to Life. In Footnote 7, the Supreme Court clearly explained the method to distinguish between issue ads and political ads:

   our test affords protection unless an ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate. It is why we emphasize that (1) there can be no free-ranging intent-and-effect test; (2) there generally should be no discovery or inquiry into the sort of “contextual” factors highlighted by the FEC and intervenors; (3) discussion of issues cannot be banned merely because the issues might be relevant to an election; and (4) in a debatable case, the tie is resolved in favor of protecting speech.

Thus, an observer cannot claim that, whatever the wording of the ad itself, the “context” or “clear intent” of the ad demonstrates that it was “intended” to affect an impending election:

For the reasons regarded as sufficient in Buckley, we decline to adopt a test for as-applied challenges turning on the speaker’s intent to affect an election. The test to distinguish constitutionally protected political speech from speech that BCRA may proscribe should provide a safe harbor for those who wish to exercise First Amendment rights. The test should also “reflec[t] our ‘profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.’ ” Buckley, supra, at 14 (quoting New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964)). A test turning on the intent of the speaker does not remotely fit the bill.

Far from serving the values the First Amendment is meant to protect, an intent-based test would chill core political speech by opening the door to a trial on every ad within the terms of §203, on the theory that the speaker actually intended to affect an election, no matter how compelling the indications that the ad concerned a pending legislative or policy issue. No reasonable speaker would choose to run an ad covered by BCRA if its only defense to a criminal prosecution would be that its motives were pure. An intent-based standard “blankets with uncertainty whatever may be said,” and “offers no security for free discussion.” Buckley, supra, at 43 (internal quotation marks omitted). The FEC does not disagree. In its brief filed in the first appeal in this litigation, it argued that a “constitutional standard that turned on the subjective sincerity of a speaker’s message would likely be incapable of workable application; at a minimum, it would invite costly, fact-dependent litigation.” Brief for Appellee in WRTL I, O. T. 2005, No. 04-1581, p. 39.⁵

A test focused on the speaker’s intent could lead to the bizarre result that identical ads aired at the same time could be protected speech for one speaker, while leading to criminal penalties for another. See M. Redish, Money Talks: Speech, Economic Power, and the Values of Democracy 91 (2001) (“[U]nder well-accepted First Amendment doctrine, a speaker’s motivation is entirely irrelevant to the question of constitutional protection”). “First Amendment freedoms need breathing space to survive.” NAACP v. Button, 371 U. S. 415, 433 (1963). An intent test provides none.

Buckley also explains the flaws of a test based on the actual effect speech will have on an election or on a particular segment of the target audience. Such a test “‘puts the speaker … wholly at the mercy of the varied understanding of his hearers.'” 424 U. S., at 43. It would also typically lead to a burdensome, expert-driven inquiry, with an indeterminate result. Litigation on such a standard may or may not accurately predict electoral effects, but it will unquestionably chill a substantial amount of political speech.

That phrase from Buckley, “at the mercy of the varied understanding of his hearers“, resonates strongly with me. Many years ago, while reviewing the record in one of the pivotal legal decisions upholding “electioneering expenditures” (which are non-political statements reported to the Federal Election Commission because they are made close to an election), I was shocked to see the plaintiffs had included an ad that I had vetted and approved to be run by a charity (which was prohibited from political activity). The ad was a classical “issue ad,” wholly directed at legislation; it asked members of the public to contact their Senator, who was Chair of an important Subcommittee that was marking up a bill critical to the organization’s mission. The markup was scheduled two weeks before the Senator’s unopposed primary election. The ad said nothing about the Senator’s character or fitness for office, and didn’t even mention the upcoming election; it was purely and simply about the bill, the markup and the fact that the Senator was chairing the Subcommittee holding the impending hearing. Yet, in the trial record and with no supporting information other than the date of publication (which was, by the way, before the “electioneering communications” rule was enacted), the ad was cited as a “sham” political ad.

The Supreme Court in WRTL II understood this danger well:

“The freedom of speech … guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment.” Bellotti, 435 U. S., at 776 (internal quotation marks omitted). See Consolidated Edison Co. of N. Y. v. Public Serv. Comm’n of N. Y., 447 U. S. 530, 534 (1980). To safeguard this liberty, the proper standard for an as-applied challenge to BCRA §203 must be objective, focusing on the substance of the communication rather than amorphous considerations of intent and effect. See Buckley, supra, at 43-44. It must entail minimal if any discovery, to allow parties to resolve disputes quickly without chilling speech through the threat of burdensome litigation. See Virginia v. Hicks, 539 U. S. 113, 119 (2003). And it must eschew “the open-ended rough-and-tumble of factors,” which “invit[es] complex argument in a trial court and a virtually inevitable appeal.” Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U. S. 527, 547 (1995). In short, it must give the benefit of any doubt to protecting rather than stifling speech. See New York Times Co. v. Sullivan, supra, at 269-270.

In light of these considerations, a court should find that an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate. Under this test, WRTL’s three ads are plainly not the functional equivalent of express advocacy. First, their content is consistent with that of a genuine issue ad: The ads focus on a legislative issue, take a position on the issue, exhort the public to adopt that position, and urge the public to contact public officials with respect to the matter. Second, their content lacks indicia of express advocacy: The ads do not mention an election, candidacy, political party, or challenger; and they do not take a position on a candidate’s character, qualifications, or fitness for office.

Some might describe this as in invitation to run ads without “magic words” of express advocacy. Indeed, in WRTL II, the FEC and its amici argued that the less the ad looks like express advocacy, the more effective it would be, but the Supreme Court firmly rejected that approach:

An expert for the FEC in these cases relied on those observations to argue that WRTL’s ads are especially effective electioneering ads because they are “subtl[e],” focusing on issues rather than simply exhorting the electorate to vote against Senator Feingold. App. 56-57. Rephrased a bit, the argument perversely maintains that the less an issue ad resembles express advocacy, the more likely it is to be the functional equivalent of express advocacy. This “heads I win, tails you lose” approach cannot be correct. It would effectively eliminate First Amendment protection for genuine issue ads, contrary to our conclusion in WRTL I that as-applied challenges to §203 are available, and our assumption in McConnell that “the interests that justify the regulation of campaign speech might not apply to the regulation of genuine issue ads,” 540 U. S., at 206, n. 88. Under appellants’ view, there can be no such thing as a genuine issue ad during the blackout period–it is simply a very effective electioneering ad.

So, although we don’t know whether the NRA used Russian money to affect the 2016 election, all this conflating still doesn’t convert money used for “issue ads” into political spending. And the protection for issue ads is long-standing and backed by the First Amendment, quite narrow, but in practice, hardly a “dumb legalism.”

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