Yesterday the United States Court of Appeals for the D.C. Circuit issued an important free speech decision in the case Pursuing America’s Greatness v. Federal Election Commission (FEC). The case stemmed from campaign finance law that prohibits independent political committees (PACs) from using the names of federal candidates in their titles. The law is based on concern that an organization with a name like “Americans for Hillary Clinton” could be too easily confused with Hillary Clinton’s official campaign committee (which is “Hillary for America”), meaning donors might contribute under that impression.
The FEC’s regulations go farther than this, though, and also place certain restrictions on using candidates’ names in projects undertaken by PACs. So, Pursuing America’s Greatness was not allowed to use the title “I Like Mike Huckabee” for an effort on its website or social media during Huckabee’s presidential candidacy. The court issued a preliminary injunction against enforcing this regulation as an unconstitutional abridgment of free speech. Just as important as the ruling is the reaction and the FEC’s arguments in the case, which question just how much faith the campaign finance community really has in disclosure.
Despite the apparent speech restriction in this case, the FEC argued it was not. “Instead, the FEC characterizes its rule as part of FECA’s disclosure framework.” The court made quick work of this by distinguishing between the two: disclosure has elements of incidental abridgement, but it is ultimately based on requiring a speaker to say certain things, while the regulations in this case prohibit speakers from saying certain things.
It does not help the FEC’s case that PACs are allowed to use candidate’s names in projects so long as they oppose the candidate. Titles like “Never Trump” could be used, while “Trump Forever” could not. Although this was a commendable recognition by the FEC to narrow the restriction to actually root out potentially confusing content (that is, no one would plausibly donate to “Never Trump” thinking it’s Trump’s campaign), this also lends to judging the restriction as content-based, subjecting it to the First Amendment strict scrutiny.
And under that scrutiny, the less restrictive means of actual disclosure make it pointless to have the restriction in question. The court notes that the FEC has a lot of actual disclosure requirements, and Pursuing America’s Greatness followed all of them. The disclaimer is apparent today on its website:
Commentary on the case is, thus far, limited. Some note the make-up of the D.C. Circuit panel of judges, wondering if the FEC will appeal to the entire D.C. Circuit (what is called a rehearing en banc), but this says nothing about the merits of the ruling. Josh Gerstein at Politico asserts larger implications: “The decision appears to break down another of the rather flimsy barriers between candidates and ostensibly unconnected super PACs supporting those candidates but raising donations in unlimited amounts.” This is another kernel in the popular media narrative about campaign coordination, one that has sunk in over the last two years despite the apparent problems with rigid and broad coordination barriers. Yesterday’s ruling does not actually implicate the coordination regulation, and Gerstein’s concern is ironic: if unconnected super PACs are, in fact, connected with candidates, the relationship actually further dilutes the FEC’s donor confusion argument.
Bob Bauer thoughtfully juxtaposes the decision with the recent Van Hollen ruling from the same circuit (one that I fear is much more likely to be overturned en banc), noting that “[f]rom a regulatory perspective, the result is that the government must resort to second-best disclosure—less effective transparency, and a higher risk of risk of voter confusion.” If this is indeed the position of regulators and reformers, one wonders where the tracks for the disclosure train end.
In the book More Than You Wanted to Know: The Failure of Mandated Disclosure, Omri Ben-Shahar and Carl E. Schneider lay out a clever and damning narrative of disclosure in many contexts. Although campaign finance disclosure is not their focus, their critique is apt. Disclosure is usually not viewed as regulation, but as a practical alternative to regulation. However, its effectiveness is questionable, at best: “[s]tudies numerously testify that people don’t notice disclosures, don’t read them if they see them, can’t understand them if they try to read them, and can’t use them if they read them.” One will immediately agree in the context of software terms of service or home insurance policies, and this seems to underlie the FEC’s argument in the Pursuing America’s Greatness case. Yes, the FEC will penalize PACs and other organizations for not including disclaimers in their communications or for failing to file reports about their finances, but even if they include these, sometimes that’s just not enough.
Since Citizens United, disclosure has certainly been the alternative: what reformers want is to return to bans and sharper regulations. They just might get their wish. In the meantime, however, the strong rhetoric behind disclosure is tempered at least a little bit when the agency that enforces it practically argues that citizens can’t be expected to read a disclaimer.