The Constitutionality of State Law Triggering Track 1, Political Committee(-Like) Burdens and the Current Circuit Splits - Draft
50 Pages Posted: 11 Jan 2016 Last revised: 14 Nov 2017
Date Written: December 15, 2016
Recognizing that political speech is at the core of what the First Amendment protects, the Supreme Court has applied constitutional scrutiny and established the two-track system under which government may regulate political speech.
Under Track 1, government may under some circumstances – and subject to further inquiry – trigger Track 1, political-committee or political-committee-like burdens.
While Citizens United v. FEC, inter alia, strikes down a ban on spending for political speech, it does not change the Buckley v. Valeo tests, which address not a speech ban but instead whether government may trigger Track 1, political-committee(-like) burdens when speech occurs.
Under Track 2, apart from whether government may trigger Track 1, political-committee (-like) burdens, government may – subject to further inquiry – require Track 2, attributions, disclaimers, and non-political-committee reporting for: Independent expenditures properly understood, and Federal Election Campaign Act (“FECA”) electioneering communications.
The Supreme Court has allowed government to regulate only these two types of political speech with Track 2 law. If government, working within Track 2, wants to regulate political speech beyond how current case law allows, government must prove the law survives scrutiny.
Some law – such as state laws that Wisconsin Right to Life, Inc. v. Barland (“Barland-II”), Minnesota Citizens Concerned for Life, Inc. v. Swanson (“MCCL-III”), and New Mexico Youth Organized v. Herrera (“NMYO”) strike down – regulates spending for political speech only by triggering Track 1, political-committee(-like) burdens.
States are free to make that choice, yet when they do, only Track 1 analysis applies.
This article examines when it is constitutional for government – particularly state government – to trigger Track 1, political-committee(-like) burdens. The First Amendment limits when government may trigger Track 1, political-committee(-like) burdens.
Such law often does not discourage the well-heeled few from engaging in political speech triggering Track 1, political-committee(-like) burdens, because the well-heeled few can afford to hire professionals to help them comply with such law.
When others cannot afford such help, such law often has the effect of shutting them out of – and leaving the well-heeled few with less competition in – the marketplace of ideas. Indeed, the most insidious aspect of such law is the extent to which it protects big players at the expense of little players. Those who advocate or defend such law beyond First Amendment boundaries are in effect protecting the well-heeled few. They are in effect protecting big players at the expense of little players. While big players and little players have the same First Amendment rights, big players have no right – none – to political-speech law protecting them at the expense of little players.
The First, Second, Fourth, Fifth, Seventh, Eighth, Ninth, Tenth, and Eleventh circuits have addressed state law triggering Track 1, political-committee(-like) burdens. No circuit’s holding coincides with any other circuit’s, and the circuit splits on these issues have become ever more complex circuit chasms. The problem is especially acute given the circuit splits over whether Citizens United pages 366-71/914-16 allow state governments to trigger Track 1, political-committee(-like) burdens.
To borrow a phrase, “Enough is enough.” Constitutional law on political speech can unite people from across the political spectrum. Courts in general, and the Supreme Court in particular, can solve the problem by holding that – regardless of the scrutiny level and regardless of whether the challenge is to the political-committee(-like) definitions or burdens – government may trigger Track 1, political-committee(-like) burdens only for organizations that are “under the control of a candidate” or candidates in their capacities as candidates or for organizations having “the major purpose” under Buckley. And even when government clears the Buckley hurdle, government must still clear the Sampson v. Buescher hurdle: Government may not trigger Track 1, political-committee(-like) burdens for organizations having the Buckley major purpose but engaging in only small-scale speech.
Meanwhile, under constitutional law, the FEC v. Wisconsin Right to Life, Inc. (“WRTL-II”) appeal-to-vote test – once known as “the functional equivalent of express advocacy” – cannot be a form of express advocacy.
Furthermore, after Citizens United, the appeal-to-vote test no longer even affects whether government may ban, otherwise limit, or regulate speech.
Moreover, under WRTL-II, the appeal-to-vote test is vague as to speech other than FECA electioneering communications. After Citizens United, what remains from WRTL-II regarding the test is the conclusion that the test is unconstitutionally vague, even vis-à-vis FECA electioneering communications.
The version of this article in the Regent University Law Review is significantly shorter than the version available here, principally because the law review's convention is to limit the number of string cites and instead cite fewer sources with the signal "e.g." For the convenience of readers seeking the additional cites, the longer version remains here.
Keywords: campaign finance, pac, disclosure, major purpose, major-purpose test, major purpose test, small scale speech, express advocacy, Federal Election Commission, appeal to vote, appeal to vote test, McCutcheon, Arizona Free Enterprise Club, Davis, McConnell, Massachusetts Citizens for Life, Randy Elf
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