The Problems of Regulating Political Speech

Bob Bauer discusses the problems with the FEC asking for illustrations and examples of permissible and impermissible grassroots lobbying ads:

One problem: the FEC can say, as it does, that it is only interested in examples as "illustrations," but the agency runs the risk of having the examples treated as government-approved scripts. If scripts are included in the rules as "illustrations" of what is permitted and what is not, they assume a significance well beyond an illustrative one. An advertiser wishing to limit risk can try to force speech within the model set out in the rules, effectively copying one ad and adopting it, with different content, for its own. The FEC must know that if it includes scripts as examples, this is one consequence: that it will have endorsed some forms of argument and disfavored others.

That this is a hazardous course is confirmed by the Commission’s choice of scripts. Two of the scripts it cites with approval, as exempt lobbying, were scripts the FEC had previously declared to be improper electioneering before the Supreme Court settled the argument. Of course, the Commission can say that its position had to change, and that it is now correctly offering these scripts as illustrations of permitted grassroots lobbying. But this experience is still an object lesson in the unreliability of administrative agency judgment in these matters. Even with the Court’s WRTL decision in hand, the FEC is not necessarily better equipped to apply criteria correctly to specific scripts: there is no reason why it might not apply them mistakenly in giving an "illustration" of what the law allows. It might work better for the FEC to establish criteria drawn from the WRTL decision and await experience before judging, preemptively, specific applications.

What, after all, is an "illustration?" The Commission says what whatever it may be, it is not "a requirement for any particular words or phrases that must be included for a communication to qualify for the safe harbor." Notice at 28. What then does an illustration, through the use of a specific script, help to accomplish, except perhaps to confuse those who consult agency rules into believing that there are indeed just such requirements for "particular words or phrases"?

This is the problem with any attempt to clamp down on political speech, particularly as it pertains to elections and politics--it is almost impossbible to distinguish between a legitimate ad about a policy discussion and a legitimate ad about the election of a candidate. We have arrived at a place where we are forced to split hairs as to what is electioneering and what is grassroots lobbying. It is possible that the inclusion of a certain word or phrase may mean the difference between the two, but how long will it take for such a determination to be made?

Of course, asking such a question assumes that such a determination should be made. The progression of political speech regulation should be clear in the wake of WRTL. A law is passed restricting some "corrupting ifluence," a court challenge is made, the Supreme Court rules that X portion of the law is unconsitutional and then we have to redefine what is permissible, only to restart the cycle.

In the meantime, more and more people become disenfranchised and disillusioned by teh system, but can't affor a lawyer to help them navigate the system to make changes. So we are left with leaders who think it is okay to tell Americans what to say, how to say it and when to say when it comes to political speech.

The Framers must be rolling over in their graves.