A sense is building in media quarters that the Wisconsin “issue advocacy” investigation, still in limbo in the courts, might be a pivotal moment in the campaign finance reform debate. It is a spicy story: a criminal investigation with allegations about conspiracies and mention of emails to Karl Rove. And it could turn out that state law was violated. At this point there is no way of knowing. Clearer is the central issue arising out of the case: whether the First Amendment protects “a candidate’s promotion and support of issues advanced by an issue advocacy group” where “the speech may benefit his or her campaign because the position taken on the issues coincides with his or her own.”  O’Keefe v. Schmitz, No. 14–C–139, 2014  WL 1795139 (E.D. Wis. 2014).

With this development, the campaign finance conflicts circle back to the point that they reached only a few years ago, prior to the enactment of McCain-Feingold. Issue advertising was then at the forefront of the arguments, and now again, as a result of the Wisconsin case.  Of what kind is this advertising? How is it different from campaign advertising? And how does these differences bear on the question of regulated “coordination” with candidates?

Coordination and Issue Advocacy

The line to be drawn here, between campaign and issue advocacy, has haunted campaign finance regulation from the beginning. Early on, in Buckley, the Court was concerned that, because “campaigns themselves generate issues of public interest,”  “the distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical application,” imperiling “security for free discussion.”  Buckely v. Valeo, 424 U.S. 1, 42-43 (1976).  But even before Buckley, the courts grappled with the way to distinguish “political campaign financing” from the “funding of movements dealing with national policy.”  United States v. Nat’l Comm. for Impeachment, 469 F.2d 1135, 1141-42 (2d Cir. 1972).

It has remained ever since a reform objective to keep political actors from cloaking their campaign messages in issue speech and escaping legal limits.   Most recently, McCain-Feingold took its best shot, banning certain corporate and union-paid references to candidates within weeks before elections. But the reform measure ran into the jurisprudence of the Roberts court in 2007 in Wisconsin Right to Life.  The Court there held that issue advertisements run in campaigns and with references to candidates could not be judged by intent or effect, but only by their expressed content: they could regulated on the condition that they contained express advocacy or its “functional equivalent.” The court specifically carved out the protection of speech that constituted grassroots lobbying on issues without an express electioneering message and could be reasonably interpreted as something other than a campaign appeal.

A complication is that there are two main types of issue speech, one more connected to an ongoing campaign than the other. One might mention a candidate but with a message about issues rather than about an election, and another addresses the issue without any mention of the candidate or any of the other “indicia” of express advocacy or its functional equivalent. The messages sent out within certain periods before an election and with references to candidates are, of course, known as “electioneering communications”—the communications that were the subject of the Court’s decision in Wisconsin Right to Life.

The debate now underway tends to resist the reasoning of Wisconsin Right to Life and direct attention away from the ad’s content to its likely campaign effects and the candidate’s involvement in encouraging it.  The position stakes its persuasiveness on an appeal to “common sense.”  If the candidate has encouraged the speech in the belief that she will benefit from it, it should not matter whether the speech has an express electoral appeal embedded in it, or is merely a boost to her candidacy because it is consonant with her position on campaign issues. The law, it is argued, must recognize the benefit as it would any other contribution.

It  is not clear, however, that the government can restrict coordinated electioneering communications in which there is no express advocacy or its functional equivalent—issue speech within 60 and 30 days of an election that qualifies as “issue advertising” under Wisconsin Right to Life. Then there is the further question of whether Congress’s authority could reach so far as to regulate coordinated issue advertising without any reference to a candidate, as in “It is time to get out of Afghanistan—Now.”  Just the issue; no mention of candidate or election.

Coordinated Issue Advocacy and the Press

This question of regulating coordinated issue advertising raises a number of issues, one of which has become familiar after Citizens United:how to distinguish coordination permitted for media corporations but denied for other organizations.

Candidates often plan or budget for “earned” media, which is achieved in the press through public events and communications covered by the press, but also a considerable amount of media work backstage. It is well known how this works. Plentiful resources on both the campaign and the press side are committed to these contacts. Whether the result is seen in editorials, daily coverage or opinion columns, it falls within the definition of issue speech: it “conveys information and educates,” it is “speech and debate on public policy issues.”  FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 470-81 (2007).  And it is coordinated issue speech, again within the standard definition, because it is requested and encouraged by candidates who stand to expect and stand to benefit from it.   But except in the case of press organizations owned or controlled by candidates, federal law exempts from regulation the coordination of this speech through media corporations.

The separation of large media corporations from other spenders in the regulation of issue speech has been a feature of law and legal commentary for a long time. But it is not accepted everywhere, and its acceptance may be decreasing. The Supreme Court in Citizens United expressed doubt that the press could call on special First Amendment protections solely for media corporations. Absent a broad ruling in favor of corporate free speech rights, the Court suggested, the rights of media corporations to engage in campaign-related activities, including this kind of coordinated issue speech, would be thrown into question.   Professor Michael McConnell has since suggested that the answer to the preferential treatment of media corporations lies in putting an end to the preference and treating all independent advocacy, by any and all sources, as protected under the Press Clause.

And it is, perhaps, coordinated issue speech that would be particularly difficult to justify making available on an unrestricted basis to media corporations exclusively. No one becomes particularly excited about press editorials endorsing particular candidates: it is a traditional media practice, consistent with a broad protection, long available even to corporations, of the ability to publicly announce candidate preferences.  See 11 C.F.R. § 114.4(c)(6).  But the more extensive press involvement in coordinated issue speech not permitted for other speakers, including rivals of the traditional media, is necessarily more controversial, and the case for this difference in treatment is harder to make.