Ortiz, Daniel R.

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DRAWING A ROADMAP TO UPHOLD BCRADaniel R. OrtiOf the three judges on the district court, Judge Kollar-Kotelly wasthe most sympathetic to the Bipartisan Campaign Reform Act of 2002("BCRA").' She would have upheld all its central parts and havestruck down only three of its peripheral provisions: (1) those ban-ning contributions from minors, (2) those forcing political parties tochoose between coordinated and independent spending for theircandidates, and (3) those requiring broadcasters to keep and discloseparticular records. Her opinion is also the most detailed and themost grounded in evidence. That is not necessarily a virtue, ofcourse, if you believe, as Judge Henderson did, that the evidence waseither flawed or irrelevant. Most interestingly, Judge Kollar-Kotelly'sopinion is the most "realistic" of the three individual opinions. Morethan the otherjudges, she tried to get at how the political process ac-tually works and to understand the operation of BCRA's provisions inthat light. Such a pragmatic approach is good, of course, unless onethinks she misunderstands politics. As Bob Bauer said in the firstpanel, many are suspicious of any court's ability to really understandit.Despite its virtues, I think the opinion will have exactly the sameimpact as the other judges', which is to say little to none. It is not go-ing to affect greatly what the Supreme Court does. Certainly Justices,like Scalia and Thomas, who believe that Buckley v. Vale2 was wronglydecided and should be rethought from the bottom up, are not goingto be swayed by it. To anyone who is deeply suspicious of campaignfinance regulation, it will make no difference at all. To those Justices,on the other hand, who are disposed to stay within the Buckley frame-work or rethink it in the opposite direction, the opinion will offermany arguments worthy of consideration and provide one possibleroadmap to decision. But, if only because it largely represents theviews of a single judge, Judge Kollar-Kotelly's opinion in no way man-ages to present the case in a way that will structure the Supreme. John Allan Love Professor of Law, University of Virginia School of Law. The Class of 1957Summer Research Grant at the University of Virginia School of Law helped support this en-deavor. I gratefully acknowledge the support of members of that class.Pub. L. No. 107-155, 116 Stat. 81.2 424 U.S. 1 (1976) (per curiam).DRA WING A ROADMAP TO UPHOLD BCRACourt's decision making. For that matter, neither do the otherjudges' opinions.My job is to give an idea of what the opinion says about BCRA'stwo central provisions-issue advocacy and soft money. And sinceour panel is entitled "Critique," I will offer at the end some brief criti-cism and suggest where Judge Kollar-Kotelly's opinion is mostvulnerable. My critique will be, for the most part, internal. I will ac-cept most ofJudge Kollar-Kotelly's general understanding of the FirstAmendment and then challenge her reasoning within that under-standing. One could, of course, offer an external critique and criti-cize from a different First Amendment perspective, much as JudgeHenderson did. Because that larger debate about First Amendmentprinciples is so vast and well-covered elsewhere, I will work withinJudge Kollar-Kotelly's own perspective.BCRA took a novel approach to issue advocacy. Building on a lineof cases that allows government more power to regulate spending bycorporations and unions than by individuals, BCRA prohibitedspending on electioneering communications by the first group andrequired only disclosure of such spending by the second. The criticalissue was one of coverage. What exactly does "electioneering com-munication" comprehend? Congress had found that the "magicwords" test previously applied by the courts to distinguish express ad-vocacy, which was regulable, from issue advocacy, which was not, wasunworkable. Under this test, any communication that did not con-tain express words of advocacy like "vote for," "elect," "vote against,"or "defeat" counted as an issue advertisement. The absence of a fewparticular words, then, shifted speech from the regulated to the un-regulated category and, predictably, corporations, unions, and indi-vidual speakers tailored their campaign speech accordingly.Congress took a new approach in BCRA. It first created a primarydefinition of "electioneering communication." This definition carvesout those advertisements that (1) refer to a clearly identified candi-date for federal office (2) on satellite, broadcast, or cable media (3)within sixty days of a general or thirty days of a primary election while(4) targeting the candidate's jurisdiction.4 Thus, a print ad appear-ing seventy days before a federal election outside a candidate's dis-trict would not be covered even if it expressly exhorted its audienceto vote for the particular candidate, while a television ad appearing3 See Austin v. Mich. Chamber of Commerce, 494 U.S. 652 (1990) (upholding a Michiganlaw prohibiting corporations from using corporate treasury funds for independent expendi-tures in state elections); FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238 (1986) (holding un-constitutional a federal statute requiring corporations to make independent political contribu-tions only through segregated funds, as applied to a nonprofit organization).BCRA § 201.Sept. 2003]JOURNAL OF CONS77TUTIONAL LAV Wtwenty days before a federal election in a candidate's district wouldbe covered so long as it identified the candidate-even if it did notrequest the audience to vote for or against him.Judge Kollar-Kotelly found BCRA's primary definition of election-eering communication constitutional. To my mind, the most impor-tant strategic move in her opinion was getting beyond the "magicwords" test. Most other courts had suggested that the "magic words"test was constitutionally required. These other courts, looking tosmall passages in Buckley5 and Massachusetts Citizens For Life ("MCFL"),fhad found that without express words urging the defeat or election ofa candidate an ad escapes the traditional source and disclosure re-quirements that apply to political spending. What Judge Kollar-Kotelly pointed out was that these two Supreme Court cases nowheremade magic words a constitutional requirement. Instead, she ar-gued, the Supreme Court used the test only as an aid to statutoryconstruction. These express terms, she claimed, represented nothingmore than a narrowing construction of the actual statutory terms, aconstruction that the Supreme Court adopted only in order to avoidvoid-for-vagueness difficulties. She found no evidence that the Su-preme Court believed the First Amendment required these words.After making this move, Judge Kollar-Kotelly applied strict scru-tiny. She inquired whether BCRA's handling of electioneering com-munications under the primary definition was a narrowly tailoredmeans of achieving a compelling governmental purpose. No prob-lem there, she found. The purpose here was preventing corruptionor the appearance of corruption, which the Supreme Court had longheld compelling. That part was easy. The narrow tailoring require-ment, by contrast, required much more attention. This is where heropinion gets very interesting and, to some people's minds, mosttroubling. It relies extensively on the record and, in particular ontwo Buying Time studies of advertising in the 1998 and 2000 elections.'These reports surveyed television ads from the 1998 and 2000election cycles and concluded that very few issue ads would be af-fected by BCRA's primary definition. The 1998 study, for example,concluded, in part, that only 7 percent of all issue ads televised thatyear met BCRA's primary definition." Plaintiffs vigorously attackedthese studies-and still do. They are now claiming in the SupremeCourt, for example, that "the Buying Time reports were entirely and5 424 U.S. at 41-44 & n,52.6 479 U.S. at 248-50.7 CRAIG B. HOLMAN & LUKE P. MCLOUGHLIN, BUYING TIME 2000: TELEVISION ADVERTISINGIN THE 2000 FEDERAL ELECTIONS (2001); JONATHAN S. KRASNO & DANIEL E. SELTZ, BUYING TIME:TELEVISION ADVERTISING IN THE 1998 CONGRESSIONAL ELECTIONS (2000).9 KRASNO & SELTZ, supra note 7, at 109.[Vol. 6:1DRA WING A ROADMAP TO UPHOLD BCRAirredeemably biased,"9 and that "the reports' conclusions aboutBCRA's insignificant effect on so-called 'genuine' issue ads are in-supportable."'0Although Judge Kollar-Kotelly agreed that there were some prob-lems with the Buying Time studies, she thought that the problemswere overall not serious. She described plaintiffs' attempts to dis-credit the studies as "a pifiata party: if one hits the pifiata enough, itwill eventually crack apart."" But she thought that in the end theplaintiffs had failed to crack the pifiata. Like Judge Leon, Judge Kol-lar-Kotelly extensively relied on the studies' central findings. She alsothought the plaintiffs' failure to do any independent studies or evento try to replicate the study they criticized highly significant:Although some of [the pifiata] "hits" have merit.., neither Plaintiffs nor[their expert] have attempted to conduct their own similar study, or evenreplicate a discrete portion of the Buying Time studies, despite the factthat the underlying materials were provided to them by Defendants. Pre-senting the Court with contradictory results from such a study would havebeen far more persuasive than the recalculations of incorrect versions ofthe Buying Time data sets and the often conjectural and speculative criti-cism proffered by Plaintiffs and [their expert].12Judge Kollar-Kotelly also strongly rejected any claim of bias. "Iwould not," she found, "discount the [Buying Time] studies becausethey were approached with a particular result in mind. The testi-mony shows that policy perspectives and effective scientific researchare not mutually exclusive. And, as to the particular actions whichDr. Gibson, the Plaintiffs' expert, pointed to as evidence of bias-the"cleaning" of data and recoding-Judge Kollar-Kotelly thought that"[t]he 'cleaning' of the data that Dr. Gibson finds suspicious ap-pears... to be a necessary function for databases of the size pro-duced for the Buying Time reports and not the function of bias. Fix-ing miscodings and resolving the 'cookie cutter' issues required suchactions. "0 4 She also noted that one of Dr. Gibson's major complaintswith the studies, his inability to reproduce their conclusions from theunderlying data sets, resulted from his own use of the wrong dataset."5 Judge Kollar-Kotelly believed that this confusion also "under-9 Brief for Appellants/Cross Appellees Senator Mitch McConnell et al. at 53 n.18, McCon-nell v. FEC, 251 F. Supp. 2d 176 (D.D.C.) (three-judge court), prob. juris. noted, 123 S. Ct. 2268(2003) (mem.).10 Id. at 55.11 251 F. Supp. 2d at 584 (Kollar-Kotelly,J.).12 Id.13 Id.14 Id. (citation omitted).Id. ("[C]onfusion ... as to the correct database to use to analyze the studies' findings de-creases the utility of Dr. Gibson's Expert Report. ... .") (citation omitted).Sept. 2003]JOURNAL OF CONSTITUTIONAL LAWmines the notion that the Buying Time authors manipulated the datain order to achieve their desired results.'' 6Judge Kollar-Kotelly did not, however, accept the Buying Timestudies completely. In particular she declined to rely on that part ofthe 1998 study concerning "the impact BCRA would have had ongenuine issue advertisements over the course of 1998 or within thefinal days of the election.",7 Because of a controversy about the un-derlying coding of data, she could not accept either side's view of thisissue. Similarly, because of what she identified as a difficulty in the"authors' perceptions," she did not accept the 2000 study's conclu-sion that "of all the issue advertisements run within 60 days of the2000 election that mentioned a candidate, 0.6 percent were genuineadvertisements. "19 She did, however, accept as "the most conservativecalculation" the figure of 17 percent.:°Relying on these and other studies and other evidence presentedin the record, Judge Kollar-Kotelly found sufficient support forBCRA's four-part primary definition of electioneering communica-tion. She found (1) that most ads referring to clearly identified can-didates promoted their election, not general issues; (2) that very fewgenuine issue ads appeared in the sixty- and thirty-day periods beforegeneral and primary elections; (3) that genuine issue advocacy withinthose periods would be ineffective in framing the terms of debate ongeneral issues; (4) that since advertising gets more expensive thecloser it appears to an election, speakers who want to sway opinion onissues rather than on candidates would want to advertise outside ofBCRA's time frames anyway; and (5) that BRCA's targeting prongworked well to separate out issue advocacy from advocacy designed tosupport particular candidates. Best of all, she thought, the BCRA fac-tors had the advantage of objectivity. By avoiding inquiry into thesubjective understanding of the audience and the subjective intent ofthe speaker, they skirted First Amendment danger. As she put it,"[b]ased on the extensive evidence presented in the record, it is en-tirely possible to distinguish pure issue advocacy from candidate-centered issue advocacy without relying on the listener/viewer at-tempting to discern the 'true' intent of the advertisement."2'Since the other two judges disagreed with this conclusion, it is notpart of the district court's holding. Judge Leon's view was the pivotalone here. He found BCRA's primary definition of electioneering16 Id. at 584-85.7 Id. at 585.'8 Id.19 Id. at 586.20 Id.21 Id. at 587.[Vol. 6:1DRA WING A ROADMAP TO UPHOlD BCRAcommunications unconstitutionally overbroad. At the same time,however, he found that BCRA's backup definition (severed of onepart) was constitutional. Presumably in order to provide a court ma-jority, Judge Kollar-Kotelly later agreed with Judge Leon's view thatthe modified backup provision passed muster. But she did so withoutreal discussion. That is a real weakness in her opinion, for JudgeLeon's modified backup provision turned out to be broader than theprimary definition itselflThe only remaining question was how spending for electioneeringcommunications could be treated. BCRA basically said that individu-als could spend for this kind of advertising without limit subject todisclosure. By contrast, it completely barred business corporationsand unions and any other corporation that received money fromthem from engaging in this kind of spending. Judge Kollar-Kotellybelieved there was only one real issue: whether applying the law toso-called MCFL corporations invalidated it. These are corporationsmore akin to "voluntary political associations than business firms."2In particular, they must satisfy three conditions: (1) they must be"formed for the express purpose of promoting political ideas, andcannot engage in business activities"; (2) they must have no "share-holders or other persons affiliated so as to have a claim on its assetsor earnings"; and (3) they must be independent "from the influenceof business corporations."23 Judge Kollar-Kotelly found that barringMCFL corporations that receive money from business corporationsand unions from spending on electioneering communication did notfacially violate the First Amendment. She did leave open, however,the possibility that as applied to particular MCFL corporations,BCRA's ban might pose troubling First Amendment issues, whichwould need to be raised and considered in subsequent suits.Judge Kollar-Kotelly's approach to BCRA's soft money provisionswas even more straightforward. She saw them "as a fund raising re-striction aimed at restructuring the failed allocation regime that hasproduced a campaign finance system so riddled with loopholes as tobe rendered ineffective." 24 Applying Buckley v. Valeo, she found thatsoft money was a form of contribution, not of expenditure, and sowas subject to something less than strict scrutiny. A law regulatingcontributions, she said, must be "'closely drawn' to match a 'suffi-ciently important interest.'2 5Austin v. Mich. Chamber of Commerce, 494 U.S. 652, 661 (1990) (quoting FEC v. Mass.Citizens for Life, Inc., 479 U.S. 238, 263 (1986)).23 Id. at 662-64.24 McConnell, 251 F. Supp. 2d at 652 (Kollar-KotellyJ.).25 Id. at 664.Sept. 2003)JOURNAL OF CONSTITUTIONAL LAWAs before, she found an important governmental purpose in pre-venting corruption and the appearance of corruption and also inpreventing circumvention of valid contribution limits. And again,looking to the record, she found much to support that purpose. Poli-ticians, she found, knew who gave money to their parties, particularlywhen it was informally credited to them individually. This alloweddonors to obtain special access, which she considered a form of cor-ruption. People often give to political parties to get something in re-turn, she thought, rather than just to get their favorite candidateselected. Judge Kollar-Kotelly also found that the soft money provi-sions were narrowly tailored "because [they permit] federal candi-dates and officeholders to... fully participate in the political process,but closely circumscrib[e] their activities to prevent the kinds ofproblems that developed with their solicitation of nonfederalfunds."2 6 And finally, she dodged one issue that will become impor-tant later: whether federalism principles allow Congress to regulatesome soft money practices of state political parties. She believed thatnone of the parties before the district court had standing to raise thisparticular claim.2 ' Only the states, she thought, could.There are four particular places where some will criticize JudgeKollar-Kotelly's work. First, some will complain of her reliance on theBuying Time studies, especially since she herself faulted them inplaces. In her defense, she would argue that she relied on the studiesonly where she thought them reliable and relevant and that in mostinstances other uncontroverted studies or expert testimony backedthem up. Second, her failure to justify her finding that Judge Leon'smodified version of BCRA's backup definition of electioneeringcommunications was constitutional is a major failing. She acceptedJudge Leon's justification uncritically but his reasoning is fairly weak.Perhaps Judge Kollar-Kotelly felt that a rule backed by a majority ofthe court was necessary on this issue but that the less said about thisparticular rule the better. Third, when she discusses the treatment ofelectioneering communications (as opposed to their definition), shereally sees only a single issue: whether BCRA has to cut loose allMCFL corporations. She largely overlooks other possible issues, likewhether requiring MCFL corporations to accept funds for suchspending only from individuals and then requiring them to carefullysegregate those funds within the corporation might represent a lessrestrictive means of preventing corruption or its appearance. Finally,as for the soft money provisions, Judge Kollar-Kotelly pushes things abit. She sees obtaining access as a type of corruption. That may beright but the Supreme Court has not yet moved so far.2 Id. at 707-08.2 Id. at 712.[Vol. 6:1

Drawing a Roadmap to Uphold BCRA

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Drawing a Roadmap to Uphold BCRA

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