Chart of the Court's Rulings |
BCRA Provision | Constitutional | Unconstitutional | Nonjusticiable |
323(a): nonfederal fund restrictions on national parties | Judge Kollar–Kotelly Judge Leon (only as to using nonfederal funds for 301(20)(A)(iii) activities) | Judge Henderson Judge Leon (except as to using nonfederal funds for 301(20)(A)(iii) activities) | |||
323(b): nonfederal fund restrictions on “federal election activity” by state and local parties | Judge Kollar–Kotelly Judge Leon (only as to 301(20)(A)(iii) activities) | Judge Henderson Judge Leon (only as to 301(20)(A)(i), (ii), (iv) activities) | |||
301(20): definition of “federal election activity” | Judge Kollar–Kotelly Judge Leon (only as to 301(20)(A)(iii)) | Judge Henderson Judge Leon (only as to 301(20)(A)(i), (ii), (iv)) |
323(d): nonfederal fund restrictions on tax-exempt organizations | Judge Kollar–Kotelly | Judge Henderson Judge Leon | |||
323(e): nonfederal fund restrictions on federal candidates | Judge Henderson Judge Kollar–Kotelly Judge Leon (except solicitation of nonfederal funds) | Judge Leon (only as to solicitation of nonfederal funds) | |||
323(f): nonfederal fund restrictions on state candidates | Judge Kollar–Kotelly Judge Leon | Judge Henderson | |||
201: “electioneering communication” definition | Judge Kollar–Kotelly (primary definition and, in the alternative, backup definition) Judge Leon (backup definition only) | Judge Henderson (primary and backup definitions) Judge Leon (only as to primary definition) | |||
201: disclosure of “electioneering communications” | Judge Kollar–Kotelly (severing subsection (5)) Judge Leon (severing subsection (5)) | Judge Henderson Judge Kollar–Kotelly (subsection (5) only) Judge Leon (subsection (5) only) | |||
202: coordinated “electioneering communications” as contributions | Judge Kollar–Kotelly Judge Leon | Judge Henderson |
203: prohibition of “electioneering communications” by corporations and unions | Judge Kollar–Kotelly Judge Leon (as to backup definition) | Judge Henderson | |||
204: nonprofit organization exception (“Wellstone Amendment”) | Judge Kollar–Kotelly Judge Leon (as to non-MCFL groups) | Judge Henderson Judge Leon (as to MCFL groups) | |||
212: disclosure of independent expenditures | Judge Henderson | Judge Kollar–Kotelly Judge Leon | |||
213: choice between independent and coordinated expenditures | Judge Henderson Judge Kollar–Kotelly Judge Leon | ||||
214: definition of coordinated communications | Judge Kollar–Kotelly (as to 214(a) and 214(d))) Judge Leon (as to 214(a) and 214(d)) | Judge Henderson | Judge Kollar–Kotelly (as to remainder of 214) Judge Leon (as to remainder of 214) | ||
304, 316, & 319: “Millionaire Provisions” | Judge Henderson Judge Kollar–Kotelly Judge Leon | ||||
305: limitation on lowest unit charge for candidates referring to other candidates | Judge Henderson Judge Kollar–Kotelly Judge Leon |
307: increased contribution limits and indexing of limits | Judge Henderson Judge Kollar–Kotelly Judge Leon | ||||
311: identification of sponsors | Judge Kollar–Kotelly Judge Leon | Judge Henderson | |||
318: prohibition of donations by minors | Judge Henderson Judge Kollar–Kotelly Judge Leon | ||||
504: disclosure of broadcasting records | Judge Henderson Judge Kollar–Kotelly Judge Leon |
The power of Congress to protect the election of President and Vice President from corruption being clear, the choice of means to that end presents a question primarily addressed to the judgment of Congress. If it can be seen that the means adopted are really calculated to attain the end, the degree of their necessity, the extent to which they conduce to the end, the closeness of the relationship between the means adopted, and the end to be attained, are matters for congressional determination alone. Congress reached the conclusion that public disclosure of political contributions, together with the names of contributors and other details, would tend to prevent the corrupt use of money to affect elections. The verity of this conclusion reasonably cannot be denied. When to this is added the requirement contained in section 244, that the treasurer's statement shall include full particulars in respect of expenditures, it seems plain that the statute as a whole is calculated to discourage the making and use of contributions for purposes of corruption.
Large contributions are intended to, and do, gain access to the elected official after the campaign for consideration of the contributor's particular concerns. Senator Mathias not only describes this but also the corollary, that the feeling that big contributors gain special treatment produces a reaction that the average American has no significant role in the political process.
[t]he discharge procedure, adopted in 1910, provides that if a bill has been before a standing committee for thirty legislative ... days, any member can introduce a motion to relieve the panel of the measure.... If the requisite number of members (218) sign the petition, this procedure permits a majority of the House to bring a bill to the floor even if it is opposed by the committee that has jurisdiction over the measure, the majority leadership, and the Rules Committee.
Few measures are discharged from committee. From 1931 through 1994 (approximately the period during which the modern version of the rule has been in effect), more than five hundred discharge petitions were filed, but only forty-six attracted the required signatures and only nineteen bills were discharged and passed by the House. Of those, only two became law: the Fair Labor Standards Act of 1938 and the Federal Pay Raise Act of 1960.
(i) voter registration activity during the period that begins on the date that is 120 days before the date a regularly scheduled Federal election is held and ends on the date of the election; (ii) voter identification, get-out-the-vote activity, or generic campaign activity conducted in connection with an election in which a candidate for Federal office appears on the ballot (regardless of whether a candidate for State or local office also appears on the ballot); (iii) a public communication that refers to a clearly identified candidate for Federal office (regardless of whether a candidate for State or local office is also mentioned or identified) and that promotes or supports a candidate for that office, or attacks or opposes a candidate for that office (regardless of whether the communication expressly advocates a vote for or against a candidate); or (iv) services provided during any month by an employee of a State, district, or local committee of a political party who spends more than 25 percent of that individual's compensated time during that month on activities in connection with a Federal election.
(i) public communication that refers solely to a clearly identified state or local candidate (unless the communication otherwise qualifies as Federal election activity, for instance, as GOTV); (ii) a contribution to a state or local candidate (unless designated to pay for some other kind of Federal election activity); (iii) a state or local political convention; or (iv) grassroots campaign materials (stickers, buttons, etc.) that name only a state or local candidate.
(ii) If clause (i) is held to be constitutionally insufficient by final judicial decision to support the regulation provided herein, then the term “electioneering communication” means any broadcast, cable, or satellite communication which promotes or supports a candidate for that office, or attacks or opposes a candidate for that office (regardless of whether the communication expressly advocates a vote for or against a candidate) and which also is suggestive of no plausible meaning other than an exhortation to vote for or against a specific candidate.
(ii) expenditures made by any person (other than a candidate or candidate's authorized committee) in cooperation, *218 consultation, or concert with, or at the request or suggestion of, a national, State, or local committee of a political party, shall be considered to be contributions made to such party committee
In response to the question asking who paid for an ad, just over 60 percent of survey participants correctly attributed the candidate ads and the pure issue ads to their actual sponsors. Identification of the sponsors of the candidate-oriented issue ads was much more scattered, with most people (38 to 48 percent) assuming in each case that they came from candidates and fewest (9 to 18 percent) assuming that they were paid for by an interest group. These results, of course, suggest that the disclaimers that appear on these ads are almost completely ineffective.
[o]ne of the most insidious things about soft money “issue ads” is that the ordinary viewer doesn't have a clue as to who paid for the ad. I first noticed this problem in 1996, when I saw several issue ads before it ever dawned on me that those ads were not being paid for by the candidate.... At first I just assumed that the ads were paid for by the opposing candidates' campaign funds, though I did think it was very strange that the opposing candidates' names were never mentioned. In those ads, everything is honed in on the candidate the ad is trying to defeat. At that time, I did not know that they were soft money spots.
[t]he Republican Leadership Council (“RLC”) also ran so-called “issue ads” on television in the 2000 Congressional campaign.... [Two of t]hese ads accuse [Republican Candidate Ric] Keller of acting “like a liberal.” I found it [ ] *230 ironic, not to mention unsettling, to learn of reports that the hundreds of thousands of dollars the RLC spent on these ads trying to defeat Mr. Keller were actually provided by the Florida sugar industry..... And the fact that I, a general consultant in this same race with long high-level experience in Florida politics, was not aware until earlier this year of whose money was behind these ads strongly underlines the need for disclosure of this kind of stealth electioneering financed with corporate funds.
The Yellowtail campaign had trouble finding out who was running the 1996 Citizens for Reform ads in Montana [which portrayed Yellowtail in a negative light]. As I recall, a local television station pointed us to a group in New Orleans. That group said they didn't know anything, but gave us a telephone number in Oklahoma that turned out to be connected to the J.C. Watts campaign. I believe someone there then flipped us to a phone number in Washington, D.C., and we finally found Citizens for Reform. We later learned that Citizens for Reform was actually a front for Triad, a group that ran broadcast attack ads against many Democrats nationwide in the 1996 election cycle.
Secrecy is one of the outstanding characteristics of issue advertisements, especially those financed by interest groups. As a result, we—and regulators—are *231 hampered by a remarkable paucity of information about them. The media tracking data we have referred to throughout our report fill in some of the blanks, but many key factual questions remain unanswered or may only be answered after painstaking investigation.... This secrecy, by itself, creates enormous opportunities for wrongdoing, for favors to be exchanged between issue advocates and public officials.... Among its various advantages, disclosure is thought to combat corruption by illuminating the dark corners in which undue influence may be exerted far from public view. The idea is that politicians eager for popularity and votes will be loath to enter into situations that cast doubt on their probity; thus, the more these situations are revealed, the stronger the politician's impulse to avoid them. One of the ironies of this litigation is that many of BCRA's opponents are otherwise champions of disclosure.... The public's interest in revealing these transactions is countered by the private interest of many groups and donors to keep them secret. Thus, the ability to route money to groups for candidate-oriented issue ads without disclosure has attracted an increasing amount of money to this activity. In the growing opaqueness of campaign financing, the opportunity for donors and officeholders to forge close relationships or strike deals without risk of detection increases, too.
[b]ecause issue ads are not federally regulated, sponsors are not subject to disclosure requirements. As a result, *232 who paid for an ad may not be apparent to viewers when they see it. Some organizations do identify themselves in the course of an advertisement, but their names may be unfamiliar to viewers and/or deliberately vague. For example, “Citizens for Better Medicare” is not a grass-roots generated group of citizens, but an arm of the Pharmaceutical Research and Manufacturers Association (PhRMA).
[a]mong the mysterious groups sponsoring issue ads or the mysterious donors funding various organizations-all without making information known to the public-the example of “Republicans for Clean Air” stands out. This group sponsored ads praising then-Governor Bush and criticizing Senator McCain before the 2000 Republican presidential primaries in three states. Eventually, after the first of these primaries (South Carolina's) reporters uncovered that Republicans for Clean Air consisted of two brothers, Charles and Sam Wyly, long-time friends and supporters of Governor Bush. Charles Wyly, in fact, was an authorized fundraiser for the Bush campaign.... According to press estimates, the Wylys spent $25 million on their ads for Governor Bush .... When the Wylys' involvement was later uncovered during the New York primary, the news qualified as a small bombshell and led to a wave of publicity critical of the brothers and the Bush campaign, which in turn distanced itself from “Republicans for Clean Air.” ... In sum, we have a major campaign conducted in secrecy during a key part of the 2000 Republican primary campaign, and a marked change in the level of scrutiny once its sponsors became known. Much as we applaud the ingenuity of the reporters who eventually broke the story, we strongly believe that there is a compelling governmental interest in making these facts known to all from the start.
it is not fatal that [section] 434(e) encompasses purely independent expenditures uncoordinated with a particular candidate or his agent. The corruption potential of these expenditures may be significantly different, but the informational interest can be as strong as it is in coordinated spending, for disclosure helps voters to define more of the candidates' constituencies.
This Court is bound by both the result and the reasoning of Buckley, even when they point in different directions. While Buckley confidently assured that coordinated expenditures fell within the Act's limits on contributions, it also reasoned that spending money on one's own political speech is an act entitled to constitutional protection of the highest order. Expressive coordinated expenditures bear certain hallmarks of a cash contribution but also contain the highly-valued political speech of the spender. I take from Buckley and its progeny the directive to tread carefully, acknowledging that considerable coordination will convert an expressive expenditure into a contribution but that the spender should not be deemed to forfeit First Amendment protections for her own speech merely by having engaged in some consultations or coordination with a federal candidate.
In the absence of a request or suggestion from the campaign, an expressive expenditure becomes “coordinated” where the candidate or her agents can exercise control over, or where there has been substantial discussion or negotiation between the campaign and the spender over, a communication's: (1) contents; (2) timing; (3) location, mode, or intended audience (e.g., choice between newspaper or radio advertisement); or (4) “volume” (e.g., number of copies of printed materials or frequency of media spots). Substantial discussion or negotiation is such that the candidate and spender emerge as partners or joint venturers in the expressive expenditure, but the candidate and spender need not be equal partners. This standard limits § 441b's contribution prohibition on expressive coordinated expenditures to those in which the candidate has taken a sufficient interest to demonstrate that the expenditure is perceived as valuable for meeting the campaign's needs or wants.
[m]any ripeness cases require finality of the government action that is challenged. This requirement is intended, in part, to guard against courts passing on the legality of actions that do not, in and of themselves, alter or burden the rights, duties or obligations of the claimant. For example, orders that merely embody a precursor to the later formulation of actual regulations will, as a general rule, not support a finding of ripeness.
BCRA's requirement that political ads contain information identifying the candidate supported by the communication,101 the party responsible for the content of the information, and/or an indication that the candidate approves the content of the communication ... is ... invalid, at least when applied to electioneering communications (and, for that matter, anything other than express advocacy).
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