BY EMAIL (public_comment@ethics.state.tx.us)
Texas Ethics Commission
Attn.: Ms. Natalia Luna Ashley
P.O. Box 12070
Austin, TX 78711-2070
Dear Commissioners:
The Center for Competitive Politics (“CCP”)[1] submits these comments in response to the revisions the Texas Ethics Commission (the “Commission”) made at its June 11, 2015 meeting to its proposed rulemaking defining the term “in connection with a campaign” (Tex. Admin. Code § 20.1(21)).
CCP commends the Commission for continuing to proceed in the right direction with this rulemaking. The amendments the Commission adopted resolve some of the vague standards that had existed in the original version of the proposed rule with respect to when certain expenditures and contributions will be considered to be “in connection with a campaign.”[2] In addition, the Commission has shortened the pre-election time window during which a “functional equivalent of express advocacy” standard will be applied to speech.[3] Together, these changes make the proposed rule more consistent with the First Amendment by (1) providing clearer standards that will enable members of the public to know when their speech may be subject to regulation;[4] and (2) narrowing the regulatory burden on political speech.[5]
Notwithstanding these substantial improvements, the Commission also has made two additional changes that significantly undermine these improvements. The addition of “images” and “sounds” to the “functional equivalent of express advocacy” concept reintroduces the same type of vague and indeterminate standards and unfaithfulness to relevant legal authority that plagued the initial version of the proposed regulatory text. As discussed below, images and sounds (other than written and spoken words) are not part of the “functional equivalent of express advocacy” standard as articulated by the U.S. Supreme. In practice, the meanings of most images and sounds will be difficult (if not impossible) to determine fairly and consistently, and thus these criteria are unconstitutional if used to regulate political speech.
CCP also reiterates its earlier recommendation to make it explicitly clear that, in determining whether a communication is the “functional equivalent of express advocacy,” only the communication itself may be considered.
I. The U.S. Supreme Court’s Formulation of the “Functional Equivalent” Standard Does Not Include Images and Sounds.
The Commission’s proposed language for Tex. Admin. Code § 20.1(A)(ii)(IV) and (B)(ii)(IV) is apparently based on what has come to be known as the “functional equivalent of express advocacy” standard. As we noted in our last set of comments on this rulemaking,[6] the U.S. Supreme Court has held that “an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”[7] In making this determination in Wisconsin Right to Life v. FEC (WRTL II), the Court looked at the following factors:
(1) whether the speech “is consistent with that of a genuine issue ad,” and specifically whether it “focus[es] on a legislative issue, take[s] a position on the issue, exhort[s] the public to adopt that position, and urge[s] the public to contact public officials with respect to the matter”; and
(2) whether the speech lacks “indicia of express advocacy,” and specifically whether it “do[es] not mention an election, candidacy, political party, or challenger” and “do[es] not take a position on a candidate’s character, qualifications, or fitness for office.”[8]
Notably, the Court limited its analysis to the on-screen text and voiceover narration that were used in the ads at issue. The Court did not ask whether the other non-verbal images and sounds were “consistent with that of a genuine issue ad.” The Court did not ask whether the other non-verbal images and sounds “focus on a legislative issue, take a position on the issue, exhort the public to adopt that position, and urge the public to contact public officials with respect to the matter.” (After all, how could non-verbal images and sounds do any of these things?) Likewise, the Court did not analyze whether the other non-verbal images and sounds used in the ad “mention an election, candidacy, political party, or challenger” or “take a position on a candidate’s character, qualifications, or fitness for office.” (Again, how could non-verbal images and sounds do any of these things?)
In Citizens United, the U.S. Supreme Court again invoked the “functional equivalent of express advocacy” and concluded that “Hillary: The Movie” met this standard under the following reasoning:
The narrative may contain more suggestions and arguments than facts, but there is little doubt that the thesis of the film is that she is unfit for the Presidency. The movie concentrates on alleged wrongdoing during the Clinton administration, Senator Clinton’s qualifications and fitness for office, and policies the commentators predict she would pursue if elected President. It calls Senator Clinton “Machiavellian,” and asks whether she is “the most qualified to hit the ground running if elected President.” The narrator reminds viewers that “Americans have never been keen on dynasties” and that “a vote for Hillary is a vote to continue 20 years of a Bush or a Clinton in the White House.”[9]
Again, the Court reached this conclusion not on the basis of the non-verbal images or sounds used in the film, but rather on the words of the film’s commentators and narrator.
II. Images and Sounds Necessarily Require “Know It When I See It” Subjective Determinations.
It is difficult to imagine how anyone – even the mythical legal abstraction of the “reasonable person” – can use images and sounds to determine the “functional equivalent of express advocacy” without resorting to a completely subjective “know it when I see it” (or “know it when I hear it”) test. Verbal language is already susceptible enough to varying interpretations, which is why the U.S. Supreme Court originally limited the regulation of political speech only to certain so-called “magic words” in Buckley v. Valeo,[10] and why, as we noted in our prior comments, the Texas Supreme Court, the U.S. Court of Appeals for the Fifth Circuit, and this Commission have followed suit.[11] When images and sounds are added into the calculus, the subjectivity is greatly exacerbated.
In determining whether the film “Les Amants” (“The Lovers”) violated state laws against obscenity, U.S. Supreme Court Justice Potter Stewart was infamously unable to articulate any clear, principled standard. “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [of obscenity], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it . . . ,” Justice Stewart wrote in his concurrence in Jacobellis v. Ohio.[12]
Although the U.S. Supreme Court has never repudiated the “know it when I see it” approach (perhaps because it was never adopted in any majority opinion), history has not been kind to this doctrine, and Justice Stewart’s New York Times obituary even highlighted his later regret for proposing such an unprincipled approach to adjudication.[13] As the Texas Seventh Court of Appeals has noted: “‘I know it when I see it’ is not much of a standard. Without objective criteria, a case by case determination will undoubtedly yield a wide disparity of results.”[14] In a recent U.S. Supreme Court decision, Justices Sonia Sotomayor and Anthony Kennedy also admonished their colleagues for giving “an ‘I know it when I see it’ flavor” to what should have been a determination based on objective standards.[15]
Justice Stewart’s difficulty in articulating a clear and objective standard for evaluating the “explicit love scene”[16] in “Les Amants” illustrates the perils of regulating speech on the basis of images and sounds rather than verbal expressions.[17] Just as the U.S. Supreme Court has held that “[t]he First Amendment does not permit laws that force speakers to retain a campaign finance attorney . . . before discussing the most salient political issues of our day,”[18] the First Amendment also does not permit laws that force speakers to retain experts in psychoacoustics and graphic design in order to determine what images and sounds might be regulated as being “in connection with a campaign.”
III. The “Functional Equivalent of Express Advocacy” Standard Should be Explicitly Limited to Only the Communication Itself.
CCP commends the Commission for deleting the language in the original proposed regulation permitting “limited reference to external events” in determining whether a communication is “in connection with a campaign.” However, CCP urges the Commission to make the intent of this amendment more explicit.
For the reasons we discussed in our previous comments, “reference to external events” is an unconstitutionally vague standard that deviates from the U.S. Supreme Court’s formulation of the “functional equivalent of express advocacy” concept in the Wisconsin Right to Life (“WRTL”) decision.[19] The U.S. Supreme Court did not look to any external factors in WRTL in determining whether speech was the “functional equivalent” of express advocacy. Rather, it looked only at the speech itself, and whether its content was “consistent with that of a genuine issue ad” and whether it contained any “indicia of express advocacy.” Thus, to the extent the Commission may have been looking to broaden the definition of a campaign “expenditure” beyond just the “magic words” of express advocacy, and to the extent the Supreme Court’s WRTL decision might be seen as broadening the express advocacy standard, the proposed rule could still be written to more closely track the Supreme Court’s holding.
Should the Commission adopt the revised rule, the rulemaking record will reflect the Commission’s intent that only the content within the four corners of a communication is to be considered in determining whether the speech is “in connection with a campaign.” Nonetheless, speakers (as well as future regulators) should also be entitled to rely on the plain text of the rule to understand what the rule is. Ordinary citizens and grass roots organizations merely trying to comply are unlikely to delve through the external rulemaking record in order to determine what the Commission’s intent was in adopting the rule.
Both for simplicity and, most importantly, to comport with the U.S. Supreme Court’s WRTL decision, CCP strongly reiterates its earlier suggestion that the Commission specify in proposed Tex. Admin. Code § 20.1(21)(A)(ii)(IV) and (B)(ii)(IV) that a regulator may look to “the context of only the communication itself” in determining whether speech is “in connection with a campaign.” Rules should encourage and simplify citizen participation in political campaigns. Adding this language would help achieve that worthy goal.
IV. Conclusion
The Commission made significant improvements at its last meeting to its proposed definition of “in connection with a campaign.” However, the addition of unspecified images and sounds to the “functional equivalent of express advocacy” standard introduces exactly the same type of ambiguity and departure from U.S. Supreme Court rulings that afflicted the original proposal, and which the Commission otherwise has fixed. The Commission should eliminate these additional indeterminate factors, and also make it explicitly clear that, when determining whether a communication is “in connection with a campaign,” the only relevant considerations are the content within the four corners of the communication.
For the Commission’s convenience, the attached “redline” indicates the specific changes CCP is suggesting to the latest version of the Commission’s proposed rule.
Should you have any questions about our comments or would like CCP’s assistance in any way, please feel free to contact us at 703-894-6800.
Respectfully yours,
David Keating Eric Wang,
President Senior Fellow[20]
https://www.ifs.org/wp-content/uploads/2015/08/2015-08-06_Keating-Wang-Comments_TX_TEC-Rulemaking_June-11-2015-Revisions-To-Proposed-Tex.-Admin.-Code-%C2%A7-20.121.pdf
[1] The Center for Competitive Politics is a nonpartisan, nonprofit 501(c)(3) organization that promotes and protects the First Amendment political rights of speech, assembly, and petition. It was founded in 2005 by Bradley A. Smith, a former Chairman of the Federal Election Commission. In addition to scholarly and educational work, the Center is actively involved in targeted litigation against unconstitutional laws at both the state and federal levels. For instance, it presently represents nonprofit, incorporated educational associations in challenges to state campaign finance laws in Colorado and Delaware and recently won a case in the Nevada Supreme Court. It is also involved in litigation against the state of California.
[2] Jun. 11, 2015, Proposed Tex. Admin. Code § 20.1(21)(A)(ii)(IV) and (B)(ii)(IV) (eliminating “reference to external events”); (A)(iv) (eliminating “for the purpose of supporting or opposing a candidate”).
[3] Id. § 20.1(21)(A)(ii)(II) and (B)(ii)(II) (eliminating the 60-day pre-general, pre-special, and pre-runoff election periods and applying a uniform 30-day pre-election time window).
[4] See, e.g., Grayned v. City of Rockford, 408 U.S. 104, 109 (1972) (“[W]here a vague statute ‘abut[s] upon sensitive areas of basic First Amendment freedoms,’ it ‘operates to inhibit the exercise of [those] freedoms.’ Uncertain meanings inevitably lead citizens to ‘steer far wider of the unlawful zone . . . than if the boundaries of the forbidden areas were clearly marked.’”).
[5] See, e.g., Citizens United v. FEC, 558 U.S. 310, 366-67 (2010) (where campaign finance disclosure laws are concerned, there must be a “‘substantial relation between the disclosure requirement and a ‘sufficiently important’ governmental interest”). As we noted in our prior comments, the proposed regulatory definition of “in connection with a campaign” will determine a speaker’s disclosure requirements. “Comments regarding proposed revisions to Tex. Admin. Code § 20.1(21),” Jun. 8, 2015 at 2-3, available at https://www.ifs.org/wp-content/uploads/2015/06/Comments-on-TEC-expenditure-rulemaking-6.8.15-FINAL.pdf.
[6] “Comments regarding proposed revisions to Tex. Admin. Code § 20.1(21),” Jun. 8, 2015 at 4.
[7] FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 469-70 (2007).
[8] Id. at 470.
[9] 558 U.S. 310, 325 (2010) (emphasis added) (internal citations omitted).
[10] 424 U.S. 1 (1976).
[11] “Comments regarding proposed revisions to Tex. Admin. Code § 20.1(21),” Jun. 8, 2015 at 3-4 (discussing Osterberg v. Peca, 12 S.W.3d 51 (Tex. 2000); Chamber of Commerce of the United States v. Moore, 288 F.3d 187 (5th Cir. 2002); Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655 (5th Cir. 2006); and Tex. Ethics Comm’n Op. No. 198).
[12] 378 U.S. 184, 197 (1964) (Stewart, J. concurring)
[13] John P. MacKenzie, “Potter Stewart is Dead at 70,” New York Times, Dec. 8, 1985.
[14] Chamberlain v. Cherry, 818 S.W.2d 201, 206 (Tex. App. Amarillo 1991) (citing Lunsford v. Morris,746 S.W.2d 471, 475 (Tex. 1988) (Gonzalez, J. dissenting)).
[15] Lozman v. City of Riviera Beach, 133 S. Ct. 735, 752 (U.S. 2013) (Sotomayor, J. and Kennedy, J. dissenting).
[16] Jacobellis, 378 U.S. at 196.
[17] The Supreme Court of Ohio described the scene at issue as “three minutes of . . . showing . . . an act of perverted obscenity.” State v. Jacobellis, 173 Ohio St. 22, 28 (1962) (emphasis added). The Ohio lower court wrote of the scene, “Very little, if anything, is left to the imagination. Lurid details are portrayed to the senses of sight and hearing.” State v. Jacobellis, 115 Ohio App. 226, 230 (1961) (emphasis added).
[18] Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 324 (2010).
[19] “Comments regarding proposed revisions to Tex. Admin. Code § 20.1(21),” Jun. 8, 2015 at 6-7 (discussing FEC v. Wis. Right to Life, Inc., 551 U.S. 449 (2007)).
[20] Eric Wang is also Special Counsel in the Election Law practice group at the Washington, D.C. law firm of Wiley Rein, LLP. Any opinions expressed herein are those of the Center for Competitive Politics, and not necessarily those of his firm or its other clients.
