Mr. Chairman and Members of the Wisconsin Election Board, my name is John Bolton, and I am the senior vice president of the American Enterprise Institute for Public Policy Research (AEI) in Washington, D.C. I appreciate the opportunity your invitation has afforded me to participate in your consideration of critically important Constitutional and policy issues. I have attached a brief biographical description to this prepared statement.
My own involvement with the First Amendment and campaign finance began when I was a student at Yale Law School and a research assistant for Professor Ralph K. Winter, Jr., at the time of the Watergate scandal. Professor Winter, now the Chief Judge of the U.S. Court of Appeals for the Second Circuit, was deeply interested in the Constitutional implications of many of the "reforms" being proposed by those who sought to restrict and prohibit political activity in the name of addressing corruption. He wrote several monographs for AEI, in the preparation of which I participated.
After the adoption of the Federal Election Campaign Act Amendments of 1974 (FECA), Professor Winter and I were approached by a diverse collection of plaintiffs to consider challenging the constitutionality of the FECA. The lawsuit we and our colleagues brought resulted in the Supreme Court’s decision in Buckley v. Valeo, 424 U.S. 1 (1976), which is to this day the seminal Supreme Court decision in the field.
My co-counsel in Buckley, Professor Joel M. Gora, has submitted to you extensive written testimony and related materials on the subject of your hearing today. As I have always expected from Professor Gora, he has written a comprehensive -- and I believe dispositive -- constitutional analysis of the errors and pitfalls of efforts to regulate or require disclosure of the finances of issue-oriented speech. I strongly recommend a careful reading of Professor Gora’s submission, which has nowhere been effectively answered at the Federal level.
Rather than duplicate Professor Gora’s analysis, I propose to take a less technical and more philosophical approach, to try to place in context the renewed assault on free political expression I see springing up around the country. I regret very much to say that the Board’s regulations declared invalid recently in the Wisconsin Manufacturers and Commerce litigation (WMC) were a manifestation of that phenomenon. I strongly encourage you not to travel down that road again.
In Buckley, the plaintiffs essentially argued that the entire structure of the FECA was constitutionally invalid. The Supreme Court agreed in part, and disagreed in part, declaring certain key elements of the FECA unconstitutional, but upholding others. The deformed remains of the FECA, as applicable here today, have been left basically unchanged since the Buckley decision. The key point for present purposes is that the existing structures of Federal law do not represent a carefully constructed regulatory regime. Indeed, the underlying FECA itself was, in many respects, irrational and incomplete, and the statutory wreckage left by the Buckley decision only rendered it more illogical and incoherent. In short, what exists today -- and what governs the financial aspects of political activity at the Federal level -- was something that neither the FECA’s drafters and supporters nor the Buckley plaintiffs would have preferred as an outcome.
In the years since Buckley, political actors at the national level have sought to cope with the remaining statutory provisions and to turn them to their respective political advantage. At different times, some have sought to overcome the contribution limits and expenditure limits tied to the presidential campaign subsidies by "independent expenditures." Some have more aggressively used editorial communications in the press to advocate their particular views on issues and candidates. Others have used corporate and union "membership communications" to pass on political messages to citizens and voters. Still others have used "issue advocacy" as a way of influencing public policy and elections, and still remain outside of the FECA’s regulatory grasp.
In short, in different ways at different times, individuals and groups across our political spectrum have sought to avoid and overcome the remaining FECA limits, requirements and prohibitions. Some see this pattern of creativity and innovation as sinister, and seek further restrictions, which we are discussing today.
I see this pattern as demonstrating the finest traditions of the First Amendment, of increasing speech and debate on political issues. This is why we are a free people. And this is the philosophical foundation upon which I believe the Board should build its policies. I note, therefore, that the second sentence of Section 11.001, Wisconsin Stats., is utterly inconsistent with Buckley. That sentence ("It [the legislature] . . . finds that excessive spending on campaigns for public office jeopardizes the integrity of elections."), although in the form of a legislative "finding," is simply a flat disagreement with the First Amendment. Justice Brandeis reminded us seventy years ago that "the remedy to be applied is more speech, not enforced silence." Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J.,
concurring).
More recently, the Supreme Court characterized as "a theory deeply etched in our law" that "a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand. It is often difficult to know in advance what an individual will say, and the line between legitimate and illegitimate speech is often so finely drawn that the risks of free wheeling censorship are formidable." Southwestern Promotions, Ltd., v. Conrad, 43 L. Ed. 2d 448, 459 (1975). I believe that, stating as it does a general policy of the State of Wisconsin, Section 11.001 impermissibly infects the entire remainder of the statute in virtually all Constitutional challenge brought to any portion of that statute.
The inescapable fact is that the FECA, and most of the State statutes which emulate it, was based on the fundamentally flawed idea that electoral politics could be regulated separately from the broad discussion of political issues, personalities and events that characterize the national political discourse. The regulators’ perception was correct in a sense, as the Buckley Court held, since only the compelling governmental interest in preventing corruption could overcome the strong First Amendment presumption against the regulation of political speech. But the regulators were profoundly wrong in believing that they could bring the rules of the debating society into the tumult of American political life, and domesticate it to their satisfaction.
What has frustrated the regulators and reformers ever since, of course, has been the inventiveness of those who have begun to operate outside of the distinctly limited realm where that compelling governmental interest exists. For the reformers, the only alternative is to extend the field of regulation, and there, they run squarely into the Constitutional prohibitions that Professor Gora has so extensively enumerated.
I think that the Supreme Court fully understood this point in Buckley, thus providing one of several reasons why the court’s decision in the Wisconsin Manufacturers and Commerce case was wrong. The WMC court asserted that, in Buckley, the Supreme Court "left open the possibility that a different record or changing circumstances would justify greater regulation of independent expenditures . . .." (slip op. at 17) This was so, the WMC opinion says, because the Court "had no examples of ads before it; it decided the case merely on the law itself." (Id.) Second, the WMC court concludes that reading Buckley literally "produces an absurd result. There would be no logical basis for a distinction between political ads which could be regulated, and those which could not." (slip op. at 18)
These contentions by the WMC court, which mirror many things said by Common Cause and other speech-regulation advocates, would be interesting speculations as to Buckley’s meaning, except that they completely ignore the history of the Buckley litigation itself. Most importantly, Senator Buckley and the other plaintiffs-appellants specifically argued in the Supreme Court that the efforts by the D. C. Circuit to distinguish "issue advertising" from "express advocacy" could not save the constitutionality of 18 U.S.C. Section 608(e). They contended:
"The majority’s construction [in the D.C. Circuit], moreover, raises a host of other problems. Speech on public issues can rarely go forward without mentioning the conduct of public officials; and if those officials are candidates for federal office, the restrictions of [Section 608(e)] potentially arise. As one commentator asked, ‘[w]here does advocacy of a principle end and support of a candidate begin?’
"In its efforts to narrow the statute’s reach, the Court of Appeals added additional language (‘clearly’ advocating the election or defeat of a candidate, as opposed to relating ‘primarily’ to issues of public policy) which can only confuse the already vague and sweeping contours of the section."
Brief for Appellants’ at p. 113.
In response, the appellees, including Common Cause (which had intervened in the District Court as a defendant) argued that, as construed by the Court of Appeals, Section 608(e)’s limitation was critical to avoid "end running" the FECA’s candidate expenditure ceilings. They stressed that:
"[I]ndependent expenditures for or against candidates are not a traditional means of political expression; their amount has been almost negligible. . . . [I]f such expenditures increase, the increase will almost certainly be because they offer a means to circumvent the other limits."
Brief for Appellee Common Cause et al. at p. 158. Thus, before the Supreme Court, the issue was squarely joined. Absent some showing that independent expressions of advocacy pose the risk of corruption or the appearance of corruption, none of which is present here, there is simply no new or previously undecided issue.
In addition, Senator Buckley and the other appellants also expressly raised the issue of how advocacy of a candidate less than the "magic words" formulations might be employed. They noted, for example, that:
"The freedom to make independent expenditures relating to elections is particularly important for groups not committed to political parties or political candidates. They may well disfavor the positions of all of the candidates but on balance prefer one to the other, as in Professor Rosenthal’s example of the 1968 campaign button ‘Reluctantly for Humphrey.’ [citation omitted] Such activities . . . may well force a candidate ‘off the dime,’ thus raising the level of campaign debate."
Brief for Appellants at p. 111.
The appellants went on to point out that "[a] continuous stream of questions will arise as to whether language such as "In Your Heart, You Know He’s Right" or "Goldwater for Halloween" advocates an issue or a candidate." Id. at p. 113, n. 8. The appellants, in addressing the "loophole closing" argument of the FECA’s defenders, said:
"Moreover, the ‘loophole’ is not closed if ‘X means nuclear holocaust; Y means peace and prosperity" is not prohibited. All that will happen is that some lawyers will turn from drafting bond indentures to drafting political slogans."
Id. at p. 114. In short, the Supreme Court, in my view, fully understood the choices it was making in writing its "magic words" standard. It understood that much expression related to candidates could simply not be regulated at all; it further understood that permitting some regulation would leave open the kind of anomalies that worried the court in the WMC case; and, understanding all of this, it nonetheless made its decision to permit the anomalies. Construing Section 608(e) in any other way than the Court did, of course, would have precluded, as a matter of First Amendment law, even the limited disclosure of true independent expenditures that Buckley permits.
This is not a question of finding the "correct" regulatory words. Indeed, every one of the alternatives that I now understand the Board to have under consideration brings the Board straight into constitutionally prohibited content regulation, or, even worse, into probing the state of mind of political speakers. In Buckley, the Supreme Court adopted the "express words" approach to issue-oriented speech only out of a desperate effort to construe the statute at issue in a way that could save it from constitutionally impermissible vagueness. Reading the Court’s opinion makes it clear that the Court did so not out of any great sense of enthusiasm for this approach, but only because it had no other alternative to flatly declaring the provision flatly and facially unconstitutional. To reach beyond Buckley, as Common Cause and others are once again trying to do here, risks bringing the entire remaining statutory structure down as violative of the First Amendment.
Moreover, it is extremely important that this Board, and all comparable State election officials, understand that its very authority and discretion is constrained by the First Amendment. Even if the particular statute being considered is not void for vagueness, the Board must now see itself as just another regulatory body like the Federal Aviation Administration, or the Consumer Products Safety Commission, or even the Federal Communications Commission. What you are being asked to do today is craft a regulation highly analogous to the postal statute invalidated by the Supreme Court in Lamont v. Postmaster General, 381 U.S. 301 (1965). There, the statute which the Court struck down, set "administrative officials astride the flow of mail, to inspect it, appraise it, write the addressee about it, and await the response before dispatching the mail." Id. at 306. Similarly, in Hynes v. Mayor, 425 U.S. 610, 617 (1976), the Court stressed that statutes must not "vest in municipal officials the undefined power to determine what messages residents will hear . . . ."
I say respectfully to the Board that you are being asked by the regulatory advocates to do better than the Supreme Court was able to do in Buckley. I say, also respectfully, that you are not likely to succeed, and that the reformers’ proposals will not withstand constitutional scrutiny under well-accepted First Amendment jurisprudence. In the meantime, as the inevitable litigation drags through the courts, inhibiting and distorting the political process, and leaving uncertainty and intimidation in its wake, the real public interest will suffer. There will be less political speech, not more, and the public will be less well informed, have fewer options and debates, and miss untold opportunities to make important policy choices.
Thank you again for the opportunity to make this presentation, and I would be pleased to answer any questions you may have.
John R. Bolton is senior vice president of AEI.
