District Court Makes Vague Campaign Finance Law Vaguer.

On Friday, May 2, the U.S. District Court for the District of Columbia declared many key provisions of the federal Bipartisan Campaign Finance Act of 2002 ("BCRA") unconstitutional in the case of McConnell v. FEC. The BCRA, commonly known by the name of its Senate sponsors as "McCain-Feingold," was considered by a three-judge panel, which split on many issues.

The Court was unanimous in striking down the ban on contributions by minors to candidates. Political parties also won when the panel struck down a prohibition on contributions to them from corporations, unions, and individuals to be used for political activity unrelated to particular candidates, e.g., get-out-the-vote activity.

But on the issue most critical to NRLC, the regulation of "electioneering communications," the court succeeded in making a vague law vaguer, a broad law broader. The court first struck down the definition which made it a crime for a corporation to even mention the name of a candidate for 60 days before an election (30 days before a primary). This was expected.

But then the court upheld a modified version of a backup definition of "electioneering communication" that leaves it far broader than anything Congress intended or even debated. The court amputated the final clause of the backup definition (as too vague), leaving the operative definition of electioneering communication as 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).

The operative verbs in the court's truncated backup definition, i.e., promote, support, attack, and oppose, are undefined and have a broad range of meanings and connotations. And the court said that all that had to be done to promote or attack a candidate was to broadcast a communication that is not "neutral." The court gave as an example an AFL-CIO advertisement that criticized a legislator's position on legislation. So now simply disagreeing with a candidate's legislative position is attacking or opposing that candidate under the BCRA, in violation of the law.

Furthermore, the communication does not have to actually name or even refer to the candidate - - only be considered by some enforcement official to be promoting or attacking someone who happens to be a candidate. It is not confined to being about an exhortation to vote (which the amputated clause would have required), nor is it in any way connected to an election campaign. Although it refers to "a candidate," the communicator does not have to know that the person is a candidate. (To be a candidate simply means one has received a campaign ...