The Magazine

An Appearance of Corruption

The bogus research undergirding campaign finance reform.

May 26, 2003, Vol. 8, No. 36 • By DAVID TELL
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Neither of these decisions was unanimous. Indeed, so fragile was the court's shifting series of 2-1 majorities that the judges were unable to reach consensus even about the facts on which those votes were based. Each member of the McConnell panel wrote his own, separate "findings of fact," and rarely did those findings overlap. But there was one place where they did overlap, one point of agreement amidst the general confusion. And it's something that the Supreme Court, otherwise provided so little consistent guidance by the May 2 ruling, is sure to notice: None of the McConnell judges was prepared to trust statistical evidence from the Brennan Center.

Which is potentially a very big deal.

Far and away the most controversial element of the McCain-Feingold scheme is the so-called Snowe-Jeffords Amendment. It prohibits labor unions, businesses, and most nonprofits from making direct, unregulated expenditures on "electioneering communications," defined as broadcast messages that refer to a federal candidate by name and appear in that candidate's home-district media market within 30 days of a primary election or 60 days of a general election. This rule, which by its own account the Brennan Center "played a role in crafting," is designed to repair what campaign-finance reformers consider the terrible damage wrought by a single footnote in the Supreme Court's 1976 Buckley v. Valeo decision--still the constitutional rosetta stone for federal election law. Buckley's footnote 52, addressing a similar rule enacted by an earlier Congress, forbade restrictions on political broadcasts unless they contained "express words of advocacy of election or defeat," like Vote for Smith or Let's Defeat Jones.

There's a hot dispute about whether this footnote applied only in the 1976 case or instead enunciated a general First Amendment principle. Taking the former view, McCain-Feingold proponents call footnote 52 a "loophole" that has been exploited for a quarter century by interest groups that run high-dollar election-season advertising campaigns--featuring "sham issue ads" that would be illegal but for the fact that footnote 52's magic words (vote for; vote against) appear nowhere in their scripts. For instance: "Congressman Nelson favors a Social Security plan that would throw your grandma into the snow. Call Congressman Nelson on or around the first Tuesday in November, when he's sure to be listening. Tell him to leave your grandma alone. Paid for by Citizens Who Think Congressman Nelson is a Bum." Snowe-Jeffords would squelch such ads.

Of course, if the Buckley magic-words test is a uniformly applicable First Amendment principle--it will be up to the Supreme Court to clarify the matter once and for all--then the Snowe-Jeffords ban is unconstitutional. But assuming it gets past this hurdle, the sham-issue-ad provision will still have to survive the judicial "strict scrutiny" accorded all such governmentally imposed burdens on political speech. One component of First Amendment strict scrutiny particularly relevant in this case is called "overbreadth analysis." As campaign reformers have always understood, they will ultimately need to offer the Supreme Court persuasive evidence that the Snowe-Jeffords Amendment's definition of "electioneering communications" isn't "overbroad"--that it has been crafted with sufficient precision so that it can curb "phony" issue ads without simultaneously criminalizing a substantial number of genuine, constitutionally protected issue ads as well.

This is where the Brennan Center's role in the matter becomes critical. It was Brennan's job, the details of which emerge from deep within the McConnell case files, to come up with the evidence necessary to defend Snowe-Jeffords against an "overbreadth" attack.