Indiana Law Review


Constitutional Issues in Disclosure
OF INTEREST GROUP ACTIVITIES

Deborah Goldberg*
Mark Kozlowski"

Introduction

The Call To Action issued by participants in the December 2000 Summit on
Improving Judicial Selection declares that "[s]ome activities of special interest

groups in recent judicial elections . . . have been pernicious" and recommends
consideration of "creative ways, consistent with the right of free speech, in

which state rules as to . . . financial disclosure can be applied to outside groups
and individuals as well as candidates and political parties."

1

This Paper answers

that call by examining the extent to which states may compel reporting of
information from groups that independently undertake political activities

designed to influence judicial elections.
2

In 2000, interest group involvement in judicial elections reached a new
high—and a new low.3 The "pernicious" activities that troubled Summit
participants were television advertising campaigns conducted principally

(although by no means exclusively) by the U.S. Chamber of Commerce
("Chamber") and its affiliated state organizations. Experts estimate that entities

other than candidates (including political parties) spent upwards of $16 million

in just the five states with the most expensive elections: Alabama, Illinois,

Michigan, Mississippi, and Ohio.
4
The advertising resulted injudicial campaigns

* Deputy Director, Democracy Program, Brennan Center for Justice at NYU School of
Law. B.A., 1976, Washington University, St. Louis, Missouri; Ph.D., 1980, The Johns Hopkins

University; J.D., 1986, Harvard Law School. This Paper was prepared specifically for the
Symposium on Judicial Campaign Conduct andthe FirstAmendment. The views expressed in this

Paper are those ofthe authors and do not necessarily reflect the views or opinions of the National

Center for State Courts, the Joyce Foundation, or the Open Society Institute. Supported (in part)

by a grant from the Program on Law & Society of the Open Society Institute, as well as a grant
from the Joyce Foundation.

** Associate Counsel, Brennan Center for Justice at NYU School of Law. B.A., 1980,
Sarah Lawrence College; Ph.D., 1989, Columbia University; J.D., 1991, Harvard Law School.

1

.

Call To Action: Statement ofthe National Summit on Improving Judicial Selection, 34

LOY. L.A. L. REV. 1353, 1359 (2001).

2. Spending on activities that are coordinated with a candidate is typically treated as a

campaign contribution, which may be limited in source and amount and may be subject to reporting

requirements. See FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431, 475 (2001)
(reaffirming the functional equivalence of coordinated spending and a contribution); Buckley v.

Valeo, 424 U.S. 1, 23-59 (1976) (per curiam) (upholding regulation of contributions, defined to

include coordinated expenditures).

3. In this Paper, the term "interest group" refers to an entity other than a candidate, a

political action committee, or a political party committee.

4. See Roy A. Schotland, FinancingJudicial Elections, 2000: Change andChallenge, 200

1

L. Rev. Mich. St. U. Det. C.L. 849, 862 n.54.



756 INDIANA LAW REVIEW [Vol. 35:755

that have been variously described as "nasty,"
5
"covered in muck,"

6
and

"pandering to base, ignorant prejudices."
7

The negative tone of advertising is beyond the reach of regulatory control,
and states may not (while the Supreme Court's decision in Buckley v. Valeo% is
still good law) cap independent electoral expenditures. Buckley has been
interpreted to foreclose mandatory monetary limits on spending in an election,

including judicial elections.
9

Moreover, attempts to bar "attack ads" would
appear to be classic content restrictions violative of the First Amendment,
irrespective of the identity of the sponsor. Unless public outrage causes
objectionable interest group ads to backfire—whether against the judicial
candidate supported by the group or against the group and its backers—we can
therefore almost certainly expect more of the same in elections to come. 10

5

.

See Curt Guyette, Justice atAnyPrice?, DETROITMETROTIMES, Oct. 1 0, 2000, available

a/http://www.metrotimes.coni/editorial/story.asp?id=725.

6. Joe Hallett, Supreme Court Race Features Outsider Mud, COLUMBUS Dispatch (Ohio),

June 11,2000, at 3B.

7. Robert Loeb, Letter to the Editor, Political Excess a Natural Outcome When Judges Are

Elected, Chi. Daily L. Bull., Apr. 4, 2000, at 2. For more about the character of advertising, see

Anthony Champagne, Television Ads injudicial Campaigns, 35 IND. L. Rev. 669 (2002).

8. 424 U.S. 1 (1976) (per curiam).

9. See id. at 39-59 (invalidating mandatory spending limits in federal elections, including

caps on independent expenditures); cf. Suster v. Marshall, 149 F.3d 523 (6th Cir. 1998)

(invalidating mandatory spending limits applicable to Ohio judicial candidates). The Supreme

Court has also refused to carve an exception to this rule for spending by political action committees

("PACs"). See FEC v. Nat'l Conservative Political Action Comm., 470 U.S. 480, 494-95 (1985)
(finding full First Amendment protection for such spending, even though PAC donors have no say
in how their funds are used). Moreover, states that want interest group donors to act as a brake on

pernicious activity may face constitutional obstacles ifthey seek to achieve that end by mandating

adoption of more democratic internal PAC procedures.
For two reasons, states are also unlikely to restrain skyrocketing spending by imposing limits

on contributions to PACs. First, although such limits are constitutional, see Cal. Med. Ass'n v.

FEC, 453 U.S. 182, 201 (1981), the evidence suggests that they are an ineffective means of

restraining spending. See, e.g., Frank J. Sorauf, Inside Campaign Finance: Myths and

Realities 1 58-59 (1992). Candidates operating under contribution limits have been able to raise

(and spend) at least as much money as they did before the imposition of caps, by seeking smaller

donations from more sources. There are good reasons to promote such small donor fundraising,

but reducing overall expenditures is not one of them. Second, even if contribution limits were

effective for that purpose, interest groups that do not conduct their activities through PACs involved

injudicial campaigns are generally not PACs. Contributions to the interest groups have not been,

and perhaps cannot be, limited. Whether or not such groups can be required to form PACs to

conduct their advertising campaigns is one of the tricky constitutional issues of first impression

raised by the current version of the McCain-Feingold bill. See generally McCain-Feingold-

Cochran Campaign Reform Bill, S. 27, 107th Cong. (2001).

1 0. The Chamber has in fact declared that it intends to conduct similar activities during future

judicial elections. See Katherine Rizzo, Chamber Ads Failed in Ohio, Worked Elsewhere, AP



2002] CONSTITUTIONAL ISSUES 757

That pressure can be exerted, however, only if the public is informed about

the interests behind the ads. To date that information has not been readily
available. When the advertiser is the Chamber, the interest served by the ad is
reasonably clear. But often the sponsor nominally identified on the air is an

entity created only for the campaign, with an innocuous-sounding name like
"Citizens for a Strong Ohio" or "Citizens for an Independent Court."

11

Moreover, interest groups involved in judicial elections have refused to

reveal who has contributed to their advertising campaigns, the amounts
contributed, or the precise sums expended on the advertisements.

12 Even when
the general interest ofthe sponsor is evident, that additional information may be
important. Major donors might be willing to bankroll nasty advertising

campaigns as long as their involvement can be concealed, but they may be
reluctant to explain their role to shareholders, customers, or other members ofthe
public. In judicial elections, as elsewhere, sunshine is sometimes the best

disinfectant.
13

The question therefore remains whether states may compel interest groups
to release information about their contributors and spending injudicial elections,

without running afoul ofthe First Amendment. We argue that such requirements
are constitutionally permissible.

Newswire, Nov. 8, 2000. The Chamber announced at a conference in April 2001 that twelve of

its fifteen endorsed candidates won election in 2000. The extent to which its advertising was

responsible for that success rate is certainly open to question, but the success is undoubtedly now

serving to justify additional campaign involvement. As of August 2001, we already began to see

evidence of the Chamber's involvement in the 2001 Pennsylvania Supreme Court election, See

Josh Goldstein & Chris Mondics, An Effort to Sway Pa. Court Election, The Inquirer, Aug. 1 2,
2001, available at http://inq.philly.com/content/inquirer/2001/08/12/front_page/JUDGESl2/

htm?template=aprin.

1 1

.

Stations broadcasting paid advertising are required to identify the ad's sponsor. See 47

U.S.C. § 317(a) (1994 & Supp. V 1999); 47 C.F.R. § 73.1212 (2001). Some states also impose
sponsorship identification requirements for political advertisements. The law governing such

requirements is discussed below. See discussion infra Part IV.

1 2. In both Mississippi and Ohio, the Chamber filed preemptive actions for judgments

declaring the inapplicability of the states' disclosure laws. A decision imposing Mississippi's
reporting requirements on the Chamber, see Chamber ofCommerce v. Moore, No. 3 :00-cv-778WS,

slip op., at 27 (S.D. Miss. Nov. 2, 2000), is now subjudice before the Fifth Circuit. See No. 00-

60779 (5th Cir. Nov. 6, 2001); infra notes 41-50 and accompanying text. In Ohio, the litigation

was stayed pending the determination of an administrative complaint about the failure to disclose.

See Order, Chamber of Commerce v. Ohio Elections Comm'n, No. C2-0 1-0028 (S.D. Ohio Mar.

5, 2001). When the Ohio Elections Commission finally decided that the Chamber's ads were

beyond its jurisdiction, the complainant (and intervenor in the litigation) petitioned to reactivate

the case. The motion awaits decision.

1 3. We are indebted to Roy Schotland for pointing out the applicability ofJustice Brandeis'
famous point.



758 INDIANA LAW REVIEW [Vol. 35:755

I. The Law of Campaign Finance Reporting 14

As is usually the case with matters ofcampaign finance regulation, analysis
of the question presented here begins with Buckley}

5
In reviewing the 1974

amendments to the Federal Election Campaign Act ("FECA"), the Buckley Court
specifically considered whether the First Amendment permits the government to
compel reporting of information concerning campaign contributions and
expenditures.

16
The Court analyzed reporting requirements applicable first to

candidates (and political committees) and then to interest groups (and

individuals).

With respect to reporting by candidates and committees, the Court began by
acknowledging that "compelled disclosure, in itself, can seriously infringe on
privacy of association and belief guaranteed by the First Amendment."17 But
even under the exacting scrutiny required when government regulation
significantly encroaches on constitutional rights, the Court recognized three

government interests sufficient to outweigh the burdens;

First, disclosure provides the electorate with information as to where

political campaign money comes from and how it is spent by the
candidate in order to aid the voters in evaluating those who seek federal
office. It allows voters to place each candidate in the political spectrum

more precisely The sources of a candidate's financial support also
alert the voter to the interests to which a candidate is most likely to be
responsive . . . .

,8

Second, reporting requirements serve to combat the reality and appearance of

corruption by exposing large contributions and expenditures to the light ofday.
19

Finally, the reports can provide data that is essential in enforcing limits on
contributions.

20
Finding that disclosure was the least restrictive means to achieve

these ends, the Court held that candidates and committees could be required to

file periodic reports disclosing their finances.
21

The constitutional analysis is different, however, when the Court considers
reporting requirements governing organizations that run electioneering ads

independently from any particular candidate. Because there is no transfer of

14. In this Paper, the term "reporting" refers to the process of filing campaign finance

disclosure statements with a public agency responsible for collecting the statements and making

them available for public inspection. "Reporting" must be distinguished from other forms of

disclosure, such as the identification of a sponsor on the face of an ad or during the course of a

broadcast. Sponsor identification is discussed below. See discussion infra Part IV.

15. 424 U.S. 1 (1976) (per curiam).

16. A/, at 11.

17. Mat 64.
18. Id. at 66-67 (quotations and notes omitted).

19. Mat 67.
20. Id. at 67-68.

21. Mat 80-82.



2002] CONSTITUTIONAL ISSUES 759

money directly to a candidate, the Buckley Court found unpersuasive the anti-
corruption rationale for disclosure.

22 The Court nevertheless upheld reporting
requirements for independent expenditures as a minimally restrictive means of

furthering the government's informational interest: "help[ing] voters to define

more of the candidates' constituencies."
23

The question of whether interest groups can be required to report

contributions and expenditures for electioneering is therefore easily answered in

the affirmative under the rubric ofBuckley}
A

It is not so simple, unfortunately,

to identify precisely what counts as the electioneering subject to such regulation.

It is this definitional dispute that underlies the current controversy about interest

group advertising campaigns, including those injudicial elections.

II. The Distinction Between "Express Advocacy"
and "Issue Advocacy"

Under Buckley, all spending by candidates and political committees can be
presumed to be electioneering governed by reporting requirements.

25
Interest

groups that are not political committees are another matter. Such groups might

engage in electioneering and therefore be subject to regulation, but they might

also be involved "purely in issue discussion" and thus fall outside the scope of

mandatory campaign finance reporting.
26

To ensure that FECA's reporting requirements for interest groups were
constitutionally applied, Buckley narrowly construed the statutory language to

"reach only funds used for communications that expressly advocate the election

or defeat of a clearly identified candidate."
27

According to the Court, that

interpretation ensured that the regulations would apply only to "spending that is

unambiguously related to the campaign of a particular federal candidate."
28

Unambiguous electioneering communications contained "express words of

22. Id. at 80.

23. Id. at 81.

24. Despite its holding in Buckley, the Supreme Court has upheld the right of an individual

to distribute anonymous leaflets in a ballot referendum. See Mclntyre v. Ohio Elections Comm'n,

514 U.S. 334 (1995). However, Mclntyre did not address reporting requirements, and as we argue

below, its holding does not apply to interest groups engaged in television advertising campaigns

for or against candidates. See infra notes 51-57 and accompanying text. The constitutionality of

reporting requirements for contributions as low as $100 is firmly established in Buckley, and even

first-dollar disclosure requirements may be sustained if they are evenhandedly applied to

individuals and groups. See, e.g., Vote Choice, Inc. v. DiStefano, 4 F.3d 26, 33 (1st Cir. 1993).

25. See 424 U.S. at 79 (construing a "political committee" as an organization the major

purpose of which is the nomination or election ofa candidate). Political committees under federal

law include both interest group PACs and political parties, although special rules apply to political

parties.

26. /</. at79.

27. A* at 80.

28. Id.



760 INDIANA LAW REVIEW [Vol. 35:755

advocacy of election or defeat, such as 'vote for,' 'elect,' 'support,' 'cast your
ballot for,' 'Smith for Congress,' 'vote against,' 'defeat,' 'reject.'"

29

The narrowing construction, which created what has come to be known as
the "magic words" test for "express advocacy," saved FECA's reporting
requirement from constitutional infirmity. As so interpreted, the requirementwas
neither "void for vagueness" (insufficiently explicit about the range of

expenditures that would be subject to regulation) nor substantially "overbroad"
(applicable to political speech that does not contain an electioneering element).

30

With the narrowing construction came a new set of problems. Indeed, even
the Buckley Court recognized: "It would naively underestimate the ingenuity and
resourcefulness of persons and groups desiring to buy influence to believe that
they would have much difficulty devising expenditures that skirted the restriction
on express advocacy of election or defeat but nevertheless benefitted the

candidate's campaign."
31 A quarter of a century after Buckley, interest groups

seeking to benefit a candidate's campaign while concealing their backers'

identity run advertisements that avoid using "magic words" and claim that they

are engaged in "issue advocacy." All but 1 .2% of the television ads run by
interest groups in the 2000 judicial campaigns fell into that category.32

Since Buckley, the Supreme Court has only once provided further elaboration
of the distinction between express advocacy and issue advocacy. In the 1 986
case of FEC v. Massachusetts Citizens for Life, Inc. ("A/CFZ"),33 the Court
determined that a "Special Edition" ofthe respondent group's newsletter, which

was distributed in advance ofthe 1978 elections, constituted express advocacy.34

Among other things, the newsletter carried the title "Everything You Need to
Know to Vote Pro-Life," encouraged readers to "vote pro-life," and indicated
whether each of some 400 candidates held positions consistent with those of
MCFL.35 The Court concluded:

The Edition cannot be regarded as a mere discussion ofpublic issues that
by their nature raise the names ofcertain politicians. Rather, it provides
in effect an explicit directive: vote for these (named) candidates. The
fact that this message is marginally less direct than "Vote for Smith

does not change its essential nature. The Edition goes beyond issue
discussion to express electoral advocacy.

36

5»

In other words, in determining whether the interest group had made
electioneering expenditures, the Court did not ask only whether the publication

used "magic words" explicitly endorsing or opposing a particular candidate.

29. Id. at44n.52.

30. Id. at 40-44, 77-80.

31. Id. at 45.

32. See DEBORAH GOLDBERG ET AL., THENEW POLITICS OF JUDICIAL ELECTIONS 1 8 (2002).
33. 479 U.S. 238 (1986).

34. Id. at251.

35. Id. at 243-44.

36. Id. at 249.



2002] CONSTITUTIONAL ISSUES 761

Instead, a communication that "in effect" and in "its essential nature" conveyed

an explicit directive was deemed sufficient to subject the group to regulation.
Whether "express advocacy" requires the presence of"magic words" is now

a hotly contested issue. Courts across the country are split on the issue: most

courts have adopted the magic words test, but the Ninth Circuit and several other

federal and state courts have upheld more context-sensitive tests for express
advocacy.

37
Thus, the extent to which states can regulate advertising lacking

magic words depends in part on the jurisdiction in which the elections are

conducted.
38

III. Interest Group Advertising in Judicial Elections

Only two courts have addressed the meaning of express advocacy
specifically in the context ofjudicial elections. In Osterberg v. Peca, the Texas

Supreme Court did not need to resolve the controversy about "magic words,"
because the advertisement in question (like the "Special Edition" in MCFL) used
the word "vote."

39
But the court (following the majority in MCFL) nevertheless

37. Compare, e.g., Iowa Right to Life Comm., Inc. v. Williams, 187 F.3d 963, 970 (8th Cir.

1999) (granting preliminary injunction against definition of "express advocacy" in state law that

went beyond magic words); FEC v. Christian Action Network, Inc., 1 10 F.3d 1049, 1061-64 (4th

Cir. 1 997) (invalidating federal regulation defining express advocacy to include more than magic

words); Me. Right to Life Comm., Inc. v. FEC, 98 F.3d 1 (IstCir. 1 996) (per curiam) (same), with

FEC v. Furgatch, 807 F.2d 857, 864-65 (9th Cir. 1987) (finding express advocacy even without

magic words); State ex rel. Crumpton v. Keisling, 982 P.2d 3, 10-11 (Or. Ct. App. 1999) (using

Furgatch as the basis of a contextual definition of "expenditures" subject to Oregon's reporting

requirements), review denied, 994 P.2d 132 (Or. 2000); Wash. State Republican Party v. Wash.

State Pub. Disclosure Comm'n, 4 P.3d 808, 824 (Wash. 2000) (recognizing that an ad without

magic words nevertheless was "unmistakable and unambiguous in its meaning, and presentjed] a

clear plea for the listener to take action to defeat [the] candidate"); Elections Bd. of Wis. v. Wis.

Mfrs. & Commerce, 597 N.W.2d 72 1 , 733 (Wis.) (observing that Furgatch provided "an attractive
alternative" to the magic words approach), cert, denied, 528 U.S. 969 (1999).

38. Connecticut and Oregon currently regulate such advertising. In addition, Mississippi's

law has been construed to require disclosure of the Chamber's judicial campaign ads. See supra

notes 41 -50 and accompanying text. Connecticut's law has not been challenged, and Oregon's was

upheld in Crumpton, 982 P.2d at 10-1 1.

39. 12 S.W.3d 31, 35-36, 52 (Tex. 2000). In pertinent part, the ad's two screens ran as

follows:

CONSIDER THIS:
Judge Peca was chosen by his peers El Paso's outstanding jurist

He graduated Summa Cum Laude.
He worked to reduce his docket for over seven years.

IF THAT'S ENOUGH, VOTE FOR HIM
But, if you want ONE who understands:
The Courthouse exists for the people ....

The spirit of the law . . . must be employed for justice ....



762 INDIANA LAW REVIEW [Vol. 35:755

examined the communication "as a whole and in context" before holding that the

ad constituted express advocacy.
40

In Chamber of Commerce v. Moore, the
Southern District of Mississippi went a step farther by explicitly rejecting the

magic words standard in favor ofa comprehensive contextual analysis ofthe ad's

"essential nature."
41

Chamber ofCommerce v. Moore involved an estimated $958,000 worth of
television advertising broadcast during the 2000 campaigns for the Mississippi

Supreme Court.
42 The Chamber's ads spoke in approving terms of four of the

nine candidates, but did not use magic words to endorse their election. For

example, an ad concerning incumbent Chief Justice Lenore Prather touted her

thirty-five years of legal experience and contained the following encomium:

"Lenore Prather—using common sense principles to uphold the law; Lenore
Prather—putting victims rights ahead of criminals and protecting our Supreme
Court from the influence of special interests."

43

The Chamber did not report its ads as "independent expenditures," a term
defined under Mississippi law as "an expenditure by a person expressly

advocating the election or defeat ofa clearly identified candidate."
44

According

to the Chamber, the ads were exempt from the state's reporting requirements

because they did not contain any ofthe canonical terms ofexpress advocacy. To
head offpotential efforts to regulate the advertising, the Chamber went to federal
court seeking a declaratoryjudgment that compelled reporting would violate the

First Amendment.
The district court refused, however, to determine the scope of express

advocacy in accordance with "the rigid, overly simplistic 'magic words' test of

Efficiency at the expense ofjustice cannot be tolerated.

BRING THE COURTHOUSE BACK TO THE PEOPLE!
VOTE FOR HIS OPPONENT.

Id. at 35-36.

40. Id. at 52. Neither the concurring nor the dissenting opinion took issue with the majority's

interpretation of express advocacy. The majority noted that "a message can be 'marginally less

direct' than the examples listed in Buckley so long as its essential nature 'goes beyond issue

discussion to express electoral advocacy.'" Id. (quoting FEC v. Mass. Citizens for Life, Inc., 479

U.S. 238, 249 (1986)). The court found that the second screen rendered the communication

"unmistakable and unambiguous, suggestive of only one plausible meaning," and that the ad's

contradictory pleas did "not diminish its essential express advocacy nature." Id. at 53 (quoting

Furgatch, 807 F.2d at 864).

41

.

No. 3:00-cv-778WS, slip op. at 25-27 (S.D. Miss. Nov. 2, 2000) (appeal pending).

42. The Mississippi Secretary of State arrived at this estimate after surveying television

stations. Schotland, supra note 4, at 877 & n.137. Before the survey was completed, the press
estimated the cost at only $400,000. See Shakeup on Miss. Supreme Court Called

"Unprecedented, "CLARION-LEDGER (Miss.), Nov. 8, 2000, ovfl/7a^/ea/http://www.clarionledger.

com/news/001 1/08/08supremeanal.html. The enormous disparity highlights the difficulty involved

in tracking interest group spending without formal reporting requirements.

43. Moore, No. 3:00-cv-778WS, slip. op. at 6-7.

44. Miss. Code Ann. § 23-1 5-80 l(j) (1999).



2002] CONSTITUTIONAL ISSUES 763

Buckley."*
5

Rather, the court found that MCFL "moved away from a rigid,
talismanic application of Buckley's [magic words test] to an 'essential nature'

inquiry."
46

Pursuant to this standard, the court conducted the following analysis

of the Chamber's ads:

Aired at the very time statewidejudicial elections were being conducted

in Mississippi, the advertisements contain no true discussion of issues.

While the advertisements mention "victims rights" and a "common sense
judicial philosophy," the advertisements present no elaboration ofthese

points. Instead, while providing only the background and experience of

each candidate, the advertisements repeatedly insert the candidates'

names between qualification assertions and each advertisement
concludes with an emphatic phrase obviously designed to exhort support

for the candidates' election to the Mississippi Supreme Court.
47

The court also noted that "these advertisements are virtually the same as the
advertisements being aired by the candidates themselves."

48
Concluding that the

ads "simply cannot be regarded as mere discussions of public issues," the court

denied the Chamber's request for a declaratory judgment.
49 The district court's

decision has now been appealed to the Fifth Circuit and remains subjudice.50

IV. The Law of Sponsor Identification

Related to the issue of the applicability of reporting regulations to political

communications made by independent groups is the question of whether such
groups may be required to disclose their financial sponsors in the

45. Moore, No. 3:00-cv-778WS, slip op. at 25.

46. /<*at25.

47. Id.

48. Id. at 26.

49. Id. at 25, 27. In the few days remaining between the issuance ofthe decision and Election

Day, furious battles ensued over enforcement ofthe district court decision requiring disclosure and

two collateral state court orders enjoining broadcasts of the ads. The complex details of that

litigation are not relevant here, except to note that an appeal from the state court decisions is now

pending in the Mississippi Supreme Court, Chamber ofCommerce v. Landrum, No. 2000-CA-

2048, case submitted without oral argument (Miss. Nov. 6, 2001).

50. The district court opinion has had an impact in Ohio, where the Chamber also ran

advertisements during the 2000 judicial elections. Before that opinion was issued, the Ohio

Elections Commission had denied, by one-vote margins, petitions filed by advocacy organizations

asking the Commission to declare that the Chamber's advertisements constituted express advocacy.

On the day before Election Day, however, a panel ofthe Commission, again by a one-vote margin,

found probable cause to submit the question to the full Commission. The Commissioner, who

switched his vote in favor ofreferral, stated that the Mississippi district court opinion had persuaded

him to change his view. In April, however, the full Commission voted 4-3 in favor of dismissing

the case, a decision that advocacy organizations have appealed in state court, where the matter

remains pending.



764 INDIANA LAW REVIEW [Vol. 35:755

communications themselves. The only case in which the U.S. Supreme Court has

squarely addressed this question is Mclntyre v. Ohio Elections Commission.
51

In Mclntyre, the Court held that Ohio's flat ban on the distribution of

anonymous campaign literature violated the First Amendment.
52

The Court's
decision rested largely on the identity of the party who had been prosecuted, a
lone citizen pamphleteer in a local referendum election. In such a case, said the

Court, mandatory disclosure of the author's identity could not be upheld on the

ground of the state's interest in an informed electorate. That is, "in the case of

a handbill written by a private citizen who is not known to the recipient, the name
and address ofthe author add little, ifanything, to the reader's ability to evaluate

the document's message."
53

It is questionable whether Mclntyre's holding will be extended very far

beyond its facts. First, the case involved the communication of a single

individual circulating a homemade pamphlet, as opposed to a well-funded
interest group conducting a mass media campaign. The Court specifically
suggested that sponsorship identification requirements might be appropriate for

corporations, even though they were unconstitutional as applied "to independent

communications by an individual like Mrs. Mclntyre."
54

Second, the election at

issue in Mclntyre was a referendum election where the state's interest in
disclosure rests upon "different and less powerful interests" than the interest in

guarding against corruption ofcandidates.
55

Since Mclntyre, a majority ofcourts

have upheld regulations requiring sponsor identification with respect to

electioneering ads in support of or opposition to candidates.
56

51. 514 U.S. 334(1995).

52. Id. at 357.

53. Id. at 348-49.

54. Id. at 354. Justice Ginsburg, in her concurring opinion, also distinguished the case of"an

individual leafleteer" from one where "other, larger circumstances [may] require the speaker to

disclose its interest by disclosing its identity." Id. at 358 (Ginsburg, J., concurring).

55. Id. at 356; see also Malcolm A. Heinicke, Note, A Political Reformer's Guide to

Mclntyre and Source Disclosure Laws for Political Advertising, 8 STAN. L. & POL'Y REV. 133
( 1 997) (arguing that Mclntyre does not invalidate source disclosure rules applied to groups putting

forth large-scale, organized political ads for ballot initiatives and candidate elections).

56. See, e.g., Ky. Right to Life, Inc. v. Terry, 108 F.3d 637, 648 (6th Cir. 1997) (upholding

state disclosure statute); FEC. v. Survivial Educ. Fund, Inc., 65 F.3d 285, 293-98 (2d Cir. 1995)

(upholding federal disclosure regulations); cf. Ark. Right to Life State Political Action Comm. v.

Butler, 983 F. Supp. 1209, 1226-30 (W.D. Ark. 1997) (denying plaintiffs' motion for summary

judgment on the unconstitutionality of disclosure requirements for independent expenditures for

candidate elections), affd on other grounds, 146 F.3d 558 (8th Cir. 1998), cert, denied, 525 U.S.

1145 (1999); Griset v. Fair Political Practices Comm'n, 23 P.3d 43 (Cal. 2001) (reversing, on

technical grounds, judgment invalidating sponsor identification requirement and reinstating prior

California Supreme Court decision upholding the requirement); Seymour v. Elections Enforcement

Comm'n, 762 A.2d 880 (Conn. 2000) (upholding state disclosure statute), cert, denied, 121 S. Ct.

2594 (200 1 ). But see Stewart v. Taylor, 953 F. Supp. 1 047, 1 055 (S. D. Ind. 1 997) (discounting the

distinction between candidate elections and referenda); Doe v. Mortham, 708 So. 2d 929, 934-35



2002] CONSTITUTIONAL ISSUES 765

Sponsor identification requirements interpreted to apply to genuine issue

advocacy may not fare as well. Recently, the Second Circuit invalidated
disclosure requirements that applied to any "political advertisementf]" that

"expressly or implicitly advocatefd] the success or defeat of a candidate" and

thus extended to "advocacy with respect to public issues."
57

The definitional

dispute with respect to reporting of expenditures for "express advocacy" may
thus replicate itself in the context of sponsor identification requirements. And
the problem remains, as we noted earlier, that the name ofa sponsor may disclose
little of any value to the voters.

V. Possible Lines of Action

There would appear to be several possible courses of action open to secure

additional disclosure of interest group contributions and expenditures for

advertising injudicial elections that studiously avoids using magic words. First,

disclosure proponents could seek to enforce existing reporting requirements

under the authority of Osterberg and Moore. Advocates are now pursuing this
strategy with respect to advertising run by the Chamber in the 2000 Ohio
Supreme Court elections.

Jurisdictions that have already adopted a contextual approach to the

definition of express advocacy would obviously be the most promising venues

for such actions. But affirmative litigation in jurisdictions that have not yet

considered the matter should be considered as well. Moreover, courts that have

adopted the magic words test could be urged to reconsider their decisions in the

special context ofjudicial elections.

For the purposes of regulating interest group advertising, judicial elections

may be distinguished from ordinary elections on two grounds.58 First, as Justice
Potter Stewart recognized: "There could hardly be a higher governmental interest

than a State's interest in the quality of its judiciary."
59

Indeed, the Supreme
Court has held that litigants are constitutionally entitled to proceed before "a

neutral and detached judge."
60 The heightened interest in the impartiality ofthe

judiciary—in reality and in appearance—has justified impositions upon core
First Amendment activity that would be impermissible in other contexts.

(Fla. 1998) (striking requirement that name and address of sponsor be disclosed, while upholding

requirement that advertisement state "paid political advertisement").

57. Vt. Right to Life Comm., Inc. v. Sorrell, 221 F.3d 376, 387 (2d Cir. 2000).

58. For further discussion of the differences between judicial candidates and candidates for

other elective office, see Robert M. O'Neil, The Canons in the Courts: Recent First Amendment

Rulings, 35 Ind. L. Rev. 701 (2002).

59. Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 848 (1978) (Stewart, J.,

concurring).

60. Ward v. Village ofMonroeville, 409 U.S. 57, 62 ( 1 972); see also Concrete Pipe & Prods,
of Calif, v. Constr. Laborers Pension Trust of S. Cal., 508 U.S. 602, 617-18 (1993) (stating that

litigants are entitled to a judge free of influences "which might lead him not to hold the balance

nice, clear and true").



766 INDIANA LAW REVIEW [Vol. 35:755

For example, in Cox v. Louisiana?
1

the Supreme Court upheld a state statute

that prohibited "pickets or parades in or near a building housing a court" if such

activity is conducted with "the intent ofinterfering with, obstructing, or impeding

the administration ofjustice."
62 The speech restriction was permissible because

observers might believe that raucous demonstrations outside of a court would

exert influence upon the process ofjustice taking place inside.
63 The government

was entitled to counteract this perception because it may "properly protect the
judicial process from being misjudged in the minds of the public."

64

Courts have also upheld restrictions upon the activities ofjudicial candidates

themselves. As Judge Posner has said: "Judges remain different from legislators
and executive officials, even when all are elected, in ways that bear on the
strength of the state's interest in restricting their freedom of speech."

65
Thus,

states may forbid judicial candidates from making promises as to how particular
cases will be decided and may legitimately limit their First Amendment rights in
other ways.

66
If the government can regulate the actual content of judicial

candidate speech in furtherance of its interest in maintaining the integrity ofthe

judicial process, a showing that extensive independent activity in judicial

campaigns threatens public confidence in impartial justice might well justify

disclosure of interest group campaign finances to a greater extent than in

elections generally.

A second basis for distinguishing judicial elections from other elections lies
in the nature of the contest. Judicial candidates are forbidden by codes of

judicial conduct from staking out positions on issues that may come before the
court. The claims of interest groups to be engaged in "a mere discussion of
public issues that by their nature raise the names of certain politicians" should
therefore be regarded with extreme skepticism.

67
Advertising about judicial

candidates is, to the contrary, electioneering in its essential nature.

Proponents ofdisclosure might also consider a legislative strategy, ifexisting

reporting requirements do not govern the advertising in question. After all,

Buckley did not foreclose the option ofdrafting new laws that impose disclosure
requirements, while avoiding the vagueness and overbreadth concerns raised by

FECA. This approach is the one currently being pursued in Congress, with the

61. 379 U.S. 559(1965).

62. Id. at 560.

63. Id. at 565.

64. Id.

65. Buckley v. Illinois Judicial Inquiry Bd., 997 F.2d 224, 228 (7th Cir. 1993) (invalidating

overbroad canon of ethics that limited judicial campaign pledges).

66. Most recently, the Eighth Circuit upheld Minnesota's limits on the ability of judicial

candidates to make personal solicitations for campaign contributions and to engage in a variety of

partisan activities. See Republican Party of Minn. v. Kelly, 247 F.3d 854, 862-63, 883 (8th Cir.)

(citing cases recognizing the difference between judicial candidates and candidates for other

elective offices), cert, granted, 122 S. Ct. 643 (2001).

67. FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238, 249 (1986).



2002] CONSTITUTIONAL ISSUES 767

McCain-Feingold and Shays-Meehan bills.
68 A bill on that model would require

reporting ofcommunications that refer to a clearly identified candidate and that

are broadcast during a specified period before an election. The bright line

established by the test eliminates vagueness concerns, and research into the

character ofadvertising injudicial elections demonstrates that the standard would

not be substantially overbroad.
69

This approach is not without constitutional risk,

but in the context ofjudicial elections, it may have an increased likelihood of
success.

Other strategies have also been suggested to ensure that tests following the

McCain-Feingold model are solicitous of First Amendment interests. For
example, the bright- line test could be drafted to create only a presumption of

reportable electioneering. The burden could then be placed on the state to prove

with clear and convincing evidence that any group rebutting the presumption was
in fact attempting to influence the outcome of the election. Securing such

evidence would admittedly be difficult, but not impossible. Groups could not

mail out solicitations for funds to mount a campaign for or against a judicial

candidate and then claim to be engaged in issue discussion. They could not claim

to be involved in mere "educational" efforts and then celebrate the success ofthe

advertising campaign in terms of the number of endorsed candidates who won
election—as the Chamber did this past April.70

Alternatively, or in conjunction with the rebuttable presumption, groups

insisting that their advertising was a mere discussion ofpublic issues that by their

nature raise the names of certain judicial candidates, rather than an effort to

influence the outcome of an election, could be given the option of filing a

statement to that effect. Voluntary filers of such statements would be

automatically exempt from reporting requirements, unless the state could muster

proofthat the statements were false. Assuming that most people see a difference
between finding legal loopholes in the system and affirmatively lying to public

authorities, the statements might promote more effective disclosure even if

groups had no inculpatory mailings or post-election celebratory announcement

to betray their true intent.

Just what information the new legislation would seek to have disclosed, and
precisely what level of spending would trigger disclosure requirements, are

matters more of policy than of constitutional jurisprudence. We know of no
litigation since Buckley v. Valeo challenging the level of spending set to trigger

the obligation to report in the first place, and as we noted earlier, states have a
great deal of discretion in setting the monetary thresholds for contributions that

trigger reporting of a donor's identity.
71

Clearly, the spending threshold should

be set at a level that will capture serious players about whose involvement voters

68. See generally McCain-Feingold-Cochran Campaign Reform Bill, S. 27, 107th Cong.

(2001), Bipartisan Campaign Reform Act of 2001, H.R. 2356, 107th Cong. (2001).

69. Craig B. Holman & Luke P. McLouglin, Buying Time 2000: Television
Advertising in the 2000 Federal Elections 72-73 (Brennan Ctr. 2001).

70. See supra note 10.

71

.

See supra note 9 and accompanying text.



768 INDIANA LAW REVIEW [Vol. 35:755

could be expected to care, but in our view, there is no absolute number or

mathematical formula that will yield the "right" answer.
72 Any state seeking to

draft new legislation will also face a host of questions about when, where, and
how to disclose campaign financing, the details of which are beyond the scope
of this Paper.

73

Without enforcement actions or legislative initiatives, useful disclosure will

be difficult to obtain. The press might be able to ferret out some information

about the financial backers of interest groups ads, as it did in the 2000 elections,

but information that can be obtained in this way will almost certainly be
incomplete and may not become available until after the election is over.
Investigative reporting, while very much to be encouraged and obviously
constitutional, is therefore likely to be far less effective in creating incentives to

change interest group conduct in judicial races.

72. Richard Briffault argues that the appropriate threshold for disclosure should be the point

at which an expenditure has a reasonable likelihood of affecting the outcome of a particular

election—perhaps as high as five percent of the average expenditures of the winning candidate in
the previous two or three elections for the particular office. See Richard Briffault, Issue Advocacy:

Redrawing the Elections/Politics Line, 11 TEX. L. Rev. 1751, 1788 (1999). In our view, the

informational interests at stake suggest that the threshold might be well below that point.

Frequently, it is the cumulative impact of moderate spending by a variety of related interests that

has the potential for influencing outcomes. But we need information about the sources of that

spending before we can assess what the influences are. That being said, we agree with Professor

Briffault that the thresholds in many jurisdictions could be substantially raised and that using

substantial thresholds mitigates constitutional concerns about expanding the scope of reporting

requirements. See id. at 1788-89.

73. For a discussion ofthese questions, see Writing Reform: A Guideto Drafting State
& Local Campaign Finance Laws, at ch. 8 (Deborah Goldberg ed., Brennan Ctr. 2000), which
is available in hard copy from the Brennan Center for Justice and is posted on the Center's website:

www.brennancenter.org/programs/prog_ht_manual.html.