Amicus Curiae Brief — McConnell v. Federal Election Commission

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No. 02-1674 & Consolidated Cases! QC |S. x03

OFFICE OF THE Ci ERK

ee ee

Supreme Court of the Anited States

IN THE

SENATOR MITCH MCCONNELL, ef a/..

Appellants/Cross-Appellees,

Vv.

FEDERAL ELECTION COMMISSION, ef a/.,

Appellees/Cross-Appellants.

On appeal from the United States District Court

for the District of Columbia

BRIEF OF AMICI CURIAE

INTERNATIONAL EXPERTS IN SUPPORT OF

APPELLEES/CROSS-APPELLANTS

CHRISTOPHER J. WRIGHT *

TIMOTHY J. SIMEONE

YUL J. KWON

HARRIS, WILTSHIRE & GRANNIS LLP

1200 Eighteenth Street, N.W.

Washington, DC 20036

(202) 730-1300

THOMAS D. GRANT

LAUTERPACHT RESEARCH

CENTRE FOR INTERNATIONAL LAW

5 Cranmer Road

Cambridge CB3 9BL

: United Kingdom

* Counsel of Record O11 44 1223 691 664

August 5, 2003

Eee

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WASHINGTON, D.C. 20001

TABLE OF CONTENTS

De Fe PI setccctnensseremnsecvennenseniamaninnen

Bow DRIED GU ARTI T CURIA cccececccscscosecosesccsscssesconce

PRELIMINARY STATEMENT ...............:cccesecesseeeeeeees

SUMMARY OF ARGUMENT ............ccccseesseesseeeeeeeeee

THE COURT SHOULD CONSIDER

MEASURES TAKEN BY OTHER

COUNTRIES TO LIMIT THE INFLUENCE

OF MONEY IN ELECTORAL POLITICS. .....

A. MEMBERS OF THE COURT

INCREASINGLY RECOGNIZE THE

VALUE OF CONSIDERING’ THE

WORK OF FOREIGN DECISION-

SUPORTE: sencseussisinustininssannecenstnnonensavetianasenee

B. THIS COURT’S OPINIONS HAVE

EXAMINED FOREIGN LAW AND

PRACTICES WHEN DEALING WITH

COMPLEX ISSUES IN CAMPAIGN

AND ELEC TION LAW. ..ccccccsccscccscssecsseses

PREVAILING INTERNATIONAL NORMS

SUPPORT BCRA’S RESTRICTIONS ON

THE USE OF CORPORATE AND LABOR

UNION TREASURY FUNDS ~~ FOR

ELECTIONEERING COMMUNICATIONS...

A. OTHER DEMOCRACIES RESTRICT

PAID POLITICAL ADVERTISING

FAR MORE AGGRESSIVELY THAN

(i)

TABLE OF CONTENTS—Continued

|. Direct Controls on _ Political

Broadcasting During — Election

Periods Are Widespread Among

Established Democracies........:::0++++

2. Indirect Limitations on Third-Party

Political Advertising Through

Spending Limits Are Also Wide-

spread Among Democracies..............

A. OTHER DEMOCRACIES’ HAVE

FOUND THAT RESTRICTIONS ON

PAID POLITICAL ADVERTISING

ARE COMPATIBLE WITH’ FREE

SPEECH. +........cccsccosscscscccccsssossssssonscsees a

1. The Canadian Supreme Court Has

Indicated That Restrictions on Paid

Political Advertising by Third

Parties Can Survive Constitutional

eR cacecxesssncisancseamniceatatiaaaiinn

The European Court of Human

Rights Has Indicated =‘ That

Restrictions on Paid Political

Advertising by Third Parties Are

Compatible with the Right to Free

lll. NEARLY ALL MAJOR DEMOCRACIES

IMPOSE RESTRICTIONS ON THE FLOW

OF MONEY THAT ARE FAR MORE

ONEROUS THAN’ BCRA’S_ RESTRIC-

TIONS ON SOFT MONEY .........:ccceeeeeeeeeeeenees

CONCLUSION ............cccccssssssosceereersssseessesscsesssscnssssenes

Page

rim AMPTP EY, AO eee.

TABLE OF AUTHORITIES

UNITED STATES JUDICIAL DECISIONS Page

Bowers v. Hardwick, 478 U.S. 186 (1986)............ 8

Buckley v. Valeo, 424 U.S. 1 (1976) ....ccccccceeeeeeeees 10

Burson v. Freeman, 504 U.S. 191 (1992).....000000... 9

FEC v. Beaumont, 123 S.Ct. 2200 (2003) ............. 5

Holder v. Hall, 512 U.S. 874 (1994). eee 8

Knight v. Florida, 528 U.S. 990 (1999)... cece 7

Lawrence v. Texas, 123 S.Ct. 2472 (2003)............ 7,8

Malinski v. New York, 324 U.S. 401 (1945) .......... 7

Mclntyre v. Ohio Elections Commission, 514

Cee consucens 8

Miranda y. Arizona, 384 U.S. 436 (1966) ............. 7

Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377

EES ESET ELS CO 8, 23

The Paquete Habana, 175 U.S. 677 (1900)........... 7

Poe v. Ullman, 367 U.S. 497 (1961)... eee 7

Printz v. United States, 521 U.S. 898 (1997)......... 9

Thompson v. Oklahoma, 487 U.S. 815 (1988)....... 7

United States v. Automobile Workers, 352 U.S.

Cee essconees 5

Washington v. Glucksberg, 521 U.S. 702 (1997) .. 7

Wright v. Rockefeller, 376 U.S. 52 (1964)............. 8

FOREIGN JUDICIAL DECISIONS

Australia

Australian Capital Television v. Commonwealth,

IE, ED OID ccccnccsncscnscntonsesesesseoscccccese 14

Canada

Edmonton Journal vy. Alberta (A.G.), [1989] 2

a eeesrnns 19

Figueroa v. Canada (A.G.), 2003 S.C.C., 37.......... 23

Libman v. Quebec (A.G.), [1997] 3 S.C.R. 569,

char nia taccndnannnenseones 19, 20, 22

TABLE OF AUTHORITIES—Continued

Page

Somerville v. Canada (A.G.) (1996), 136 D.L.R.

CD Bi cccccicinieisaincitiaccitpaaiittaitaieaiiilatdialassiaaian iia 21

European Union

Bowman vy. United Kingdom, [1998] E.C.H.R.

24839/94, (1998) 4 B.H.R.C. 25.............cccecseees 25, 26

Fressoz and Roire v. France, (1999) 5 B.H.R.C.

A ccnsscoseesninenentenenbentsiiinnbabinsitilivapapaendiaaiammmatnaibaies 24

Surek and another v. Turkey, (1999) 7 B.H.R.C.

FD achacsastenmniiidaaainatandiaiibaiiiiiaeininbiitiine 24

Unabhdngige Initiative Informationsvielfalt v.

Austria, [2002] E.C.H.R. 28525/95 oe 24

Ozgiir Giindem v. Turkey, [2000] E.C.HLR.

PIE scinnsennsatiatinnnateiiaionmdiniuaniiins 24

Wierzbicki v. Poland, [2002] E.C.H.R. 24541/94.. 24

India

Godakh Yashwantrao Kankarro v. EV. alias

Balasaheb Vikhe Patil, 1994 A.1.R. (S.C.) 678. 17

Israel

High Court of Justice Cases Nos. 869/92 and

ee Cee icersccitenissheitescinteisininndatiatsaintaiaibiaiiabaiaiiel 13, 17, 26

UNITED STATES STATUTE

Bipartisan Campaign Reform Act of 2002, Pub.

L. 107-155, 116 Stat. 81 (2002)..............ccceeee 3, 10

FOREIGN STATUTES

Argentina

Ley 25.610, Reforma Cédigo Nacional Electoral,

OT... F GE Prccecccecrcnnciseneseaniiintaciisntadnedatnameianancainntais 15

Australia

Broadcasting Services Act, 1992 (Cth), Sch. 2,

PG 2, GE. DUR cccncccnsessnsdenaternnneemteninesenmemeneiane 14

Special Broadcasting Services Act 1991 (Cth)

TABLE OF AUTHORITIES—Continued

Page

Austria

Bundesgesetz iiber den — Osterreichischen

Rundfunk (as amended, Bundesgesetzblatt, |

No. 83/2001), §$ 13 (1), 14-17 vee eceeteeeeees

Belgium

Loi du 4 juillet 1989 relative a la limitation et au

controle des dépenses électorales engagées

pour les elections des Chambres fédérales,

ainsi qu’au financement et a la comptabilité

ouverte des parti€s politiques.............ccccccceeeeeees 14,

Bolivia

Ley Electoral de 1984, con reformas, incluyendo

la Ley No. 2232 (2001), art. 120...........cccccccseeees

Brazil

Lei No. 9.504, que estabelece normas paras as

eleicgoes, arts. 26, 44 (1997) ..........ccsccsssccsssseseeees

Lei No. 4.737 Cédigo Eleitoral de 1965,

atualizado com as modificagdes da Lei

ea ile GNU sinitessicioiusietnpucclainliinasiiendainliasininnsdi

Canada

Canadian Charter of Rights and Freedoms, Part |

of the Constitution Act, 1982, being Schedule

B to the Canada Act 1982 (U.K.), 1982, ch.

Fy Me IEE IED sesenscstiinentonnicaseresnnnstenienion

Canada Elections Act, R.S.C., 1985, ch. E-2......... 20, 21

Canada Elections Act, 2000 S.C... ch. 9.0.0.0... 12,21, 29

Referendum Act, R.S.Q., ch. C-64.1 woccccceeceeeeeeee

Chile

Ley Organica Constitucional No. 18.700/88,

sobre votaciones populares y escrutinios, —

actualizada a octubre de 2001, art. 30(6)...........

TABLE OF AUTHORITIES—Continued

Costa Rica

Ley No. 1536, Cédigo Electoral, actualizado con

Seas COTUTTRES GR BDFD cncreccccccccsscssesvcssescsccenevsosseese

Dominica

House of Assembly (Elections) Act, ch. 2:01,

Re Bits i Rcciietinnsieniteinensctinnmtnnenitiaiannhiahdanntanameniintinte

European Union

European Convention for the Protection of

Human Rights and Fundamental Freedoms,

FES WA 0 ae Zak CUTIED scrccccsesssensenencsnemnersennece

France

Cy, GRRE, GIR, Bi, BBE cccccseccccccsceneneccsvesnncesscacssscenpesnen

Germany

$§ 7, 42 Rundfunkstaatsvertrag (RStV) ...........006+

§ 11 cl. | ZDF-Staatsvertrag fiir das Zweites

TNE FOI cccsncvinisnncnesrsmsinnninnsnnne

Grenada

Electoral Law, 1958, ch. 160, §§ 63(1), (3)..........

Guatemala

Ley Electoral y de Partidos Politicos de 1985, art.

223(c) & Decreto 1-90 del Tribunal Supremo

BOCRETEE, SSID, G08. FB cccccccccccessevecsecessesescscososesse

Honduras

Ley electoral y de las Organizaciones Politicas

del 19.05.1981, actualizada hasta DL No. 180-

Bak BOR, PO vnscscsscssasetantocmensencineusnenninnenennsennanenents

Hungary

Act C of 1997 on Electoral Procedure 4§ 40-41,

Italy

Law No. 28 of February 28, 2000............:ccccseeeees

Laser Fla, SERPIGGS, Gi. 8 ccvccssseccrsnscsvessconcsssssoveseses

Page

15, 16

Vil

TABLE OF AUTHORITIES—Continued

Page

Japan

Law No. 100, Apr. 15, 1950, as last amended by

Law No. 54, May 8, 1998 .0.........cccscssssseseees 12, 16, 29

Mexico

Cédigo Federal de Instituciones y

Procedimientos Electorales de 1994, con

I Par Nacnssiniiessrsnciitentonstninntipantaiaibiasistin 15, 16

Nepal

Election Code of Conduct, 2053 (1996) ............... 14,17

New Zealand

Broadcasting Act, 1989 §§ 69, 70... eeeceeeeeeeee 14

Electoral Act, 1993 §§ 210, 214B, 221............00.... 17

Nicaragua

Ley Electoral de Nicaragua de 2000, art. 97.......... 15

Paraguay

Ley No. 834/96 de 1996, Cédigo Electoral

nD, TINT: IIT arnnccnesinschitebecsiseniondeltelenniadeniinint 15

Peru

Ley No. 26859/97, Ley Organica de Elecciones

ee en TD Met tnccsnscciecdisintcintessnnniassnidiannionmtte 15

Russia

Federal Law No. 19 F-3, On Election of the

President of the Russian Federation, art. 50,

STII OF sisienisiietacdiidtatiadiieabinheaieaniatitheataatapietsinataiinaais 14

Federal Law No. 175-F3, On Elections of

Deputies of the State Duma of the Federal

Assembly of the Russian Federation, art. 58,

SSIITIE IP cinnsitiniinicatsshampeciidaciapelbieitnvinntnnatentntibieabsiintiienians 14

St. Vincent and the Grenadines

Representation of the People Act, Electoral Law,

Saas Ee ei eieidasceilcinittcillsinascttaninipnieiinntmnaanienaiibiiniaates 14

Sweden

Law on Radio and Television, S.F.S. 1996:844 .... 13

vill

TABLE OF AUTHORITIES—Continued

Switzerland

Federal Law Concerning Radio and Television of

21 June 1991, § 4, art. 18, ¢ 5 ..............00crereeeeveee

Turkey

Const., art. 32 (as amended by Law No. 4756,

Waar 21, BIZ) ecccrcccccscerecconssnccescosvsssnssoosnosesoanenses

United Kingdom

Broadcasting Act, 1990, ch. 42, §§ 8(2)(a) and

RED cnosrceseccnstenevssscesesnnmmmenontneninnensinenentemens

Political Parties, Elections, and Referendums Act

(PPERA), 2000, Ch. 41..............scscssssssscsrrcseseeseees

Representation of the People Act of 1983, §§ 5,

TE FP icocnnsessnstsinsmnsementnninnsenianininsammteaneiniennetenseenns

Venezuela

Ley Organica de Sufragio y _ Participacion

Politica, art. 209 (1997) .....cccccccesseereeeeesreeseeeeenees

LAW REVIEWS AND JOURNALS

Ruth Bader Ginsburg & Deborah Jones Merritt,

Affirmative Action: An International Human

Rights Dialogue, 21 Cardozo L. Rev. 253

Michael Pinto-Duschinsky, Financing Politics: A

Global View, 13 J. Democracy 69 (2002)..........

Sandra Day O’Connor, Keynote Address Before

the Ninety-Sixth Annual Meeting of the

American Society of International Law, 96

Am. Soc’y Int'l L. Proc. 348 (2002)...

BOOKS

lan Brownlie, Basic Documents in Human Rights

CGF 6 Pnceicenssessnasecvandannnssiinanntiiitiitiiilinimesiauecianenia

Page

TABLE OF AUTHORITIES—Continued

Michael Pinto-Duschinsky, Handbook on Fund-

ing of Parties and Election Campaigns

(Stockholm: International Institute for Democ-

racy and Electoral Assistance, forthcoming

2003) (overview available at http:// www.

europexxi.kiev.ua/english/program/conference

Fritz Plasser and Gunda Plasser, Global Political

Campaigning: A Worldwide Analysis of

Campaign Professionals and Their Practices

William H. Rehnquist, “Constitutional Courts —

Comparative Remarks” (1989) (reprinted

in Germany and its Basic Law: Past, Present

and Future — a German-American Symposium

(Paul Kirchhof & Donald P. Kommers eds.,

OTHER MATERIALS

Barile, E. Cheli & S. Grassi, /stituzioni di diritto

pubblico, Padova, CEDAM (2002)...........:000000

Committee on Standards in Public Life, Fifth

SE TN orticceettunsinnnsseennissennscuniantuniciineennneenee

Council of Europe Recommendation No. 99 (15).

European Commission of Human _ Rights,

Bowman Against the United Kingdom,

Application No. 24839/94, Re; ort of the

Commission (adopted Sept. 12, 1996)...............

European Platform of Regulatory Authorities,

Working Group 2: Political Advertising,

Background Paper EPRA/2002/09, available

at http://www.epra.org/content/english/index2.

SUDIIIT ccsiinisicnnnaaltiagienasinesiinnasbicbeiineseibimesentenneseorennatints

Page

| e tf OF ALU THORITIES—Continued

International Institute for Democracy and

Electoral Assistance (IDEA) and the Office of

Democratic Institutions and Human Rights of

the OSCE, International Electoral Standards:

Guidelines for Reviewing the Legal Frame-

WOKK Of Elections (2002).........cccccccccssssssssrerereeeee

International Institute for Democracy and

Electoral Assistance (IDEA) Voter Turnout

Website, at http://Www.idea.int/Vt.......ccccceceeeees

Italian Communications Authority Decision No.

200/00/CSP of June 22, 2000.........ccceeeeeeeereeees

Italian House of Parliament Scrutiny Committee

on Public Broadcasting (RAI) Decision of

Decemeber 16, IIE .ncccececnssesssessevscccsosonessscseoscces

Law Library of Congress, Campaign Financing

in Various Foreign Countries, Comparative

Summary and Analysis (Document No. 2002-

Page

B41 S) (BE) ncvcecoccevececcccsssenssseecncnsssssossconns 3, 28, 29, 30

Law Library of Congress, France: Campaign

Financing in Various Foreign Countries

(Document No. 2000-9042) (2000) ........ccccccceees

Notice No. 165 of the Japanese Ministry of

Home Affairs, Nov. 29, 1994, as amended by

Notice No. 150, July 12, 1996 ............scsssesseees

Report on the Results of the Audit of the Party

Groups for the Period of Elections for the

Fifteenth Knesset (1997) .........ccsscccscsessssssssssoeees

This Week with George Stephanopoulos (ABC

television broadcast, July 6, 2003)...

}

CREE TOE ™

INTEREST OF AMICI CURIAE '

Amici, who include recognized authorities. on campaign

finance laws within their respective countries, are legal

academics, political scientists, and present and former

officials and advisors (acting in their individual capacities) of

national electoral commissions from around the world

(“International Experts”):

Thomas D, Grant (Fellow, Lauterpacht Research Centre for

International Law, and Senior Research Fellow, Wolfson

College, Cambridge University);

Verena Blechinger-Talcott (Assistant Professor,

Department of Government, Hamilton College, New

York, and former Deputy Director, German Institute for

Japanese Studies, Tokyo);

Manuel Lucas Duran (Profesor Titular de Derecho

Financiero y Tributario Vicedecano de la Facultad de

Derecho, Universidad de Alcala, Madrid, Spain);

Zsolt Enyedi (Assistant Professor, Political Science

Department, Central European University, Budapest,

Hungary);

Keith Ewing (Professor of Public Law, King’s College,

London); |

Colin Feasby (attorney, Osler, Hoskin & Harcourt LLP,

Calgary, Alberta, Canada);

Stefano Grassi (Chaired Professor of Constitutional Law,

University of Florence, Faculty of Law);

Andrew Geddis (Lecturer, Faculty of Law, University of

Otago, Dunedin, New Zealand);

Omer Farul Genckaya (Department of Political Science

and Public Administration, Bilkent University, Ankara,

Turkey);

' Pursuant to Rule 37.6, counsel for amici state that no counsel for

any party authored this brief in whole or in part. No persons other than

amici or their counsel made a monetary contribution to the preparation of

this brief.

Ellie Greenwood (Senior Registrar, UK Electoral

Commission);

Gabor Juhdsz (doctor of laws and editor, political-

economic weekly HVG, Budapest, Hungary);

Prof. Dr. Bart Maddens (Department of Political Science,

Catholic University of Leuven, Belgium);

Prof. Dr. iur. Martin Morlok (Chair of Public Law,

Sociology of Law, and Legal Theory, Director, Insti-

tute for German and European Law of Political

Parties (PRUF), Heinrich-Heine-Universitit, Diisseldorf,

Germany);

Victor M. Navarrete Villarreal (Advisor to the President of

the Tribunal, Tribunal Superior de Justicia del Distrito

Federal, Mexico City);

Graeme Orr (Lecturer in Law, Griffith University,

Brisbane, Australia);

Federico Ortino (Lecturer, European Union Law,

University of Siena, Italy);

Eugenia Perona (social scientist and private consultant,

Buenos Aires, Argentina);

DDr. Hubert Sickinger (Faculty, Universitaét Wien/Institut

fiir Konfliktforschung, Austria);

Surat Singh (constitutional lawyer, Bar of the Supreme

Court of India, New Delhi);

Daniel Smilov (Adjunct Professor, Department of Legal

Studies, Central European University, Budapest,

Hungary);

Thilo Streit (Assistant Lecturer, PRUF, Heinrich-Heine-

Universitit, Diisseldorf, Germany); and

Daniel Treisman (Assistant Professor of Political Science,

University of California at Los Angeles).

The substantial interest of amici in this case arises from

their citizenship in nations forming a community of shared

democratic values, and the unavoidable impact of legal devel-

opments in the United States upon representative democracy

worldwide. Amici collectively possess a formidable breadth

of theoretical knowledge and practical experience in the

field of campaign financing, and are uniquely qualified to

assist the Court by situating the Bipartisan Campaign Reform

Act of 2002? (“BCRA”) within the broader international

legal landscape.

PRELIMINARY STATEMENT

This brief examines campaign finance laws in foreign

countries to inform the Court with respect to two central

issues: (1) the constitutionality of BCRA’s limitations on

paid political advertising by third parties; and (2) the

constitutionality of BCRA’s prohibitions on “soft money.”

The information presented here was contributed by amici, and

supplemented by data from a variety of publicly available

sources, including a survey of foreign campaign finance

regimes conducted by the Library of Congress on behalf of

Congress in 2000.”

SUMMARY OF ARGUMENT

The United States is not alone in struggling with the

problem of how to curtail inappropriate financial influence in

electoral politics. Every major democracy recognizes that

money can distort politics, and each restricts campaigning to

mitigate corruption in the electoral system. A comparative

understanding of such efforts may aid this Court’s review of

Congress’s efforts to close loopholes in the American

campaign finance regime. Considering parallel efforts by

> Pub. L. 107-155, 116 Stat. 81 (2002)

“In 2000, the Library of Congress surveyed eighteen countries—

Argentina, Australia, Canada, the Czech Republic, France, Greece, India,

Iran, Israel, Italy, Japan, Mexico, the Netherlands, the Russian Federation,

Singapore, Taiwan, Turkey, and the United Kingdom. The results of that

survey are provided in both a “Comparative Summary and Analysis,” see

Law Library of Congress, Campaign Financing in Various Foreign

Countries, Comparative Summary and Analysis (Document No. 2002-

14013) (2002) (“LOC Comparative Summary”), and reports on individual

countries.

other countries around the world is consistent with the

Court’s established practice of drawing on _ foreign

experiences to address issues of common constitutional

concern.

Two pillars of BCRA are its limitations on third-party paid

political advertising by unions and corporations, and its

restrictions on so-called “soft money.” With respect to paid

political advertising, the United States has adopted a far more

lenient regime than its peers. Most democracies, including all

of the other members of the Group of Seven (G-7) nations,

strictly limit or even prohibit the broadcast of paid political

advertisements. An analysis of judicial opinions in other

countries, moreover, suggests that the United States’ isolated

posture does not follow ineluctably from the American

commitment to freedom of speech. To the contrary, other

democracies with deeply ingrained traditions of free speech

analogous to the First Amendment have recognized that

preserving the integrity of the political process requires some

restrictions on paid political advertising.

With respect to the American soft money problem, there is

no direct analogue overseas. Nevertheless, it is instructive to

consider this problem within the larger context of how other

nations control the flow of money into political campaigns.

Most major democracies, again including all of the other G-7

nations, have far more restrictive regulatory regimes than the

United States. As a general rule, other countries have chosen

to implement either public financing of elections, or strict

limits on campaign expenditures, or both. The United States

has, of course, taken the more permissive approach of merely

limiting federal campaign contributions. While amici take no

issue with that basic approach, we would urge the Court—in

considering whether to uphold congressional efforts to plug

the gaping soft money loophole—to be cognizant of the fact

that the United States occupies an extreme end of the

spectrum in regulating the flow of money in electoral politics.

Upholding BCRA’s limits on soft money would only

incrementally nudge the American system of campaign

financing away from the fringe of international practice.

I. THE COURT SHOULD CONSIDER MEASURES

TAKEN BY OTHER COUNTRIES TO LIMIT

THE INFLUENCE OF MONEY IN ELECTORAL

POLITICS.

The problem of how to limit “deleterious influences on

federal elections” arising from the political activities of

corporations and other sources of aggregated wealth is not

unique to the United States. In reviewing the constitutionality

of BCRA, this Court should consider other countries’ treat-

ment of the issues underlying the statute.

A. Members Of The Court Increasingly Recog-

nize The Value Of Considering The Work Of

Foreign Decision-Makers.

The value of looking beyond our national boundaries on

matters of common constitutional concern has been increas-

ingly recognized and affirmed by members of the Court.

Chief Justice Rehnquist spoke forcefully to this issue over a

decade ago:

For nearly a century and a half, courts in the United

States exercising the power of judicial review had no

precedents to look to save their own, because our courts

alone exercised this sort of authority. ... But now that

constitutional law is solidly grounded in so many

countries, it is time that the United States courts begin

looking to the decisions of other constitutional courts to

aid in their own deliberative process.”

‘FEC v. Beaumont, 123 S.Ct. 2200, 2205 (2003) (quoting United

States v. Automobile Workers, 352 U.S. 567, 585 (1957)).

* William H. Rehnquist, “Constitutional Courts—Comparative Re-

marks” (1989) (reprinted in Germany and its Basic Law: Past, Present

and Future—a German-American Symposium 411, 412 (Paul Kirchhof &

Donald P. Kommers eds., 1993)).

Chief Justice Rehnquist’s statement has been echoed and

elaborated by other Justices. In 1999, Justice Ginsberg gave a

lecture in which she stated the importance of comparative

analysis in constitutional interpretation:

Experience in one nation or region may inspire or inform

other nations or regions .... In my view, comparative

analysis emphatically is relevant to the task of inter-

preting constitutions and enforcing human rights.°

Last year, Justice O’Connor similarly urged attention to the

work of foreign decision-makers and the opportunities they

afford the Court to learn from their well-considered opinions:

{C]onclusions reached, by other countries and by the

international community should at times constitute per-

suasive authority in American courts. . . . While ulti-

mately we must bear responsibility for interpreting our

own laws, there is much to learn from other

distinguished jurists who have given thought to the same

difficult issues that we face here.’

More recently, Justice Breyer correctly observed that the

process of examining “our Constitution and how it fits into

the governing documents of other nations . . . will be a

challenge for the next generation.”™ Such comments by

sitting Justices signal an appropriate interest on the part of

this Court in expanding the universe of data upon which its

deliberations rely.

Significantly, however, applying foreign law and experi-

ence to calibrate American constitutional norms is hardly a

new practice. To the contrary, “this Court has long con-

* Ruth Bader Ginsburg & Deborah Jones Merritt, Affirmative Action:

An International Human Rights Dialogue, 21 Cardozo L. Rev. 253, 281-

82 (1999).

” Sandra Day O'Connor, Keynote Address Before the Ninety-Sixth

Annual Meeting of the American Society of International Law, 96 Am.

Soc’y Int'l L. Proc. 348, 350 (2002).

* This Week with George Stephanopoulos (ABC television broadcast,

July 6, 2003).

. 42

mathe Fae Ie ce I +

ee ee we ES * “*

sidered as relevant and informative the way in which foreign

courts have applied standards roughly comparable to our own

constitutional standards in roughly comparable circum-

stances.” Starting with the celebrated case of The Paquete

Habana, in which the Court declared that “international law

is a part of our law,”' the Court has regularly referenced

decisions in kindred democracies to illuminate its under-

standing of shared democratic values and universal human

standards.'' Most recently, in Lawrence v. Texas,'* the Court

directly relied on the conclusions of the European Court of

” Knight v. Florida, 528 U.S. 990, 997 (1999) (Breyer, J., dissenting

from denial of certiorari).

175 U.S. 677, 700 (1900).

" See, e.g., Washington v. Glucksberg, 521 U.S. 702, 710, 718 n.16,

785-87 (1997) (Rehnquist, C.J.) (declaring that “in almost every State—

indeed, in almost every western democracy—it is a crime to assist a

suicide” and citing the Canadian Supreme Court, the British House of

Lords Select Committee, New Zealand's Parliament, the Australian

Senate, and the Colombian Constitutional Court); Thompson v. Oklahoma,

487 U.S. 815, 830 (1988) (Stevens, J.) (stating that the execution of

juveniles violates norms shared “by other nations that share our Anglo-

American heritage, and by the leading members of the Western European

community”); id. at 868 n.4 (Scalia, J., dissenting) (noting that the

“practices of other nations, particularly other democracies, can be relevant

to determining whether a practice uniform among our people is not merely

a historical accident”); Miranda v. Arizona, 384 U.S. 436, 488-89, 521-22

(1966) (comparing U.S. practice with that in India, Sri Lanka, and

Scotland); Poe v. Ullman, 367 U.S. 497, 548 (1961) (Harlan, J.,

dissenting) (delimiting notion of privacy in the home by looking to

“common understanding throughout the English-speaking world”):

Malinski v. New York, 324 U.S. 401, 413-14 (1945) (Frankfurter, J.,

concurring) (“The safeguards of ‘due process of law’ and ‘the equal

protection of the laws’ summarize the history of freedom of English-

speaking peoples... .”).

'? 123 S.Ct. 2472 (2003).

Human Rights and other foreign nations in overturning its

prior holding in Bowers v. Hardwick."

B. This Court’s Opinions Have Examined Foreign

Law And Practices When Dealing With Com-

plex Issues In Campaign And Election Law.

Justices of this Court have frequently looked overseas to

benefit from the rea! ~vorld lessons of foreign democracies in

the specific context “. campaign and election law." For

example, in Wright v. Rockefeller, the dissent by Justices

Douglas and Goldberg examined a system for apportioning

electoral districts used in Lebanon, Cyprus, and British India

in order better to evaluate a similar system that had been

implemented in Manhattan.'> In McIntyre v. Ohio Elections —

Commission, Justice Scalia, joined by Chief Justice

Rehnquist, dissented from an opinion striking down an Ohio

statute that prohibited the distribution of anonymous

campaign literature. Pointing to a number of foreign

democracies that banned anonymous campaigning, Justice

Scalia sharply criticized the majority’s decision to ignore “the

real-life experience of elected politicians” from “around the

country and around the world.”"°

'S See id. at 2475, 2481, 2483 (overturning Bowers, 478 U.S. 186

(1986).

See, e.g., Holder v. Hall, 512 U.S. 874, 906 n.14 (1994) (Thomas, J.,

concurring) (mentioning the voting systems of Belgium, Cyprus,

Lebanon, New Zealand, West Germany, and Zimbabwe in assessing race-

consciousness in the U.S. voting system); Nixon v. Shrink Mo. Gov't PAC,

528 U.S. 377, 403 (2000) (Breyer, J., concurring) (finding the Court's

First Amendment jurisprudence consistent with the decisions of the

European Court of Human Rights and the Canadian Supreme Court).

'S 376 U.S. 52, 63-66 (1964) (Douglas, J., dissenting).

our decision is whether the prohibition of anonymous campaigning is

effective in protecting and enhancing democratic elections .... Australia,

Canada, and England, for example, all have prohibitions upon 2nenymous

campaigning. How is it, one must wonder, that all of these elected

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Particularly relevant here is Burson v. Freeman, upholding

the constitutionality of a Tennessee statute that prohibited

both the solicitation of votes and the display or distribution of

campaign materials within 100 feet of the entrance to a

polling place.'” The Court observed that “[sJeveral other

countries were attempting to work out satisfactory solutions

to these same [election process] problems,” '* and embarked

upon a detailed examination of the Australian electoral

system, which had previously been adopted in England and

Belgium.'’ The Court found it compelling that “all 50 States,

together with numerous other Western democracies, settled

on the same solution;” it therefore concluded that “this

widespread and time-tested consensus [among the states and

foreign countries] demonstrates that some restricted zone is

necessary.” Burson confirms Justice Breyer’s observation

that the experiences of other countries may “cast an empirical

light on the consequences of different solutions to a common

legal problem,” *' and represents persuasive authority for

looking to the international community in evaluating BCRA.

Il. PREVAILING INTERNATIONAL NORMS

SUPPORT BCRA’S RESTRICTIONS ON THE

USE OF CORPORATE AND LABOR UNION

TREASURY FUNDS FOR ELECTIONEERING

COMMUNICATIONS.

Nearly every democracy acknowledges that significant

restrictions on advertising are necessary to preserve the

legislators, from around the country and around the world, could not see

what six Justices of this Court see so clearly {?]”).

'7 504 U.S. 191 (1992).

'* Id. at 202.

” See id. at 202-205.

* Id. at 206 (emphasis added).

*' Printz v. United States, 521 U.S. 898, 977 (1997) (Breyer, J.,

dissenting).

integrity of the political process.“~~ When measured against

those restrictions adopted in other countries, BCRA’s sixty

and thirty-day constraints on corporate and labor union

advertising are clearly located toward the extreme end of

permissiveness. Most major democracies have implemented

far stronger solutions—including categorical prohibitions on

paid political advertisements—to prevent well-funded entities

from dominating broadcast media during elections.

A. Other Democracies Restrict Paid Political

Advertising Far More Aggressively Than

BCRA.

Plaintiffs-Appellants in this case state that “unfettered issue

advocacy enjoys international support.””* If, in making this

assertion, Plaintiffs-Appellants suggest that other countries do

not generally impose restrictions on paid political advertising,

they are simply wrong. The substantial majority of

* In the United States, justifications for campaign finance reform have

focused primarily on the “actuality and potential for corruption absent

regulation.” Buckley v. Valeo, 424 U.S. 1, 28 (1976). Notably, while

other countries certainly recognize that interest, the need to “level the

playing field” —-so that a diversity of groups may express themselves and

so that a single dominant group does not curtail the rights of others to

political expression by overwhelming the most important channels of

mass Communication—also enjoys widespread recognition as a legitimate

goal of an electoral system. See, e.g., International Institute for

Democracy and Electoral Assistance (IDEA) and the Office of

Democratic Institutions and Human Rights of the OSCE, /nternational

Electoral Standards: Guidelines for Reviewing the Legal Framework of

Elections 65-66 (2002) (“There should be a level playing field among

the parties or candidates”); see also Council of Europe Recommendation

No. (99)15 (“on measures concerning media coverage of election

campaigns”).

>’ See Pub. L. 107-155 (H.R. 2356, 107th Cong.) §§ 201, 203.

* Brief of Plaintiffs-Appellants/Cross-Appellees National Right to Life

Committee et al., at 15 n.18.

*> An alternative reading of Plaintiffs-Appellants’ proclamation is that

other countries do not restrict the advertisement of issue-oriented (and

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developed nations, including all the other G-7 democracies—

the United Kingdom, France, Canada, Germany, Italy, and

Japan—impose burdens on paid political advertising that are

much more restrictive than those mandated under BCRA.

Some countries directly fetter paid political advertising by

third parties, while others impose ceilings on third-party

spending that indirectly but substantially curtail the ability of

third parties to broadcast political advertisements.

1. Direct Controls on Political Broadcasting

During Election Periods Are Widespread

Among Established Democracies.

Even with the adoption of BCRA, the United States

possesses by far the most permissive regime regulating paid

political advertising within the G-7. In the. United Kingdom,

the Broadcasting Act of 1990 prohibits all paid political

advertising in broadcast media—whether funded by

candidates, political parties, or third parties.°° Similarly,

France proscribes all paid political advertising on television

during the three months preceding an election.”’ Germany

also imposes a general ban on paid political advertisement in

broadcast media,” with one exception. During the six weeks

leading up to a national or European Union election, public

stations are required to provide free airtime to the political

non-election-related) political messages. Whether this claim is true or not,

it is irrelevant to the case at hand. There is no question here as to whether

BCRA may proscribe the use of such funds for true issue-oriented

advertisements, because the statute does not attempt to limit such

advertisements by unions and corporations. The degree to which other

countries support issue-oriented, non-election-related advocacy therefore

does not speak to the question before the Court.

** See Broadcasting Act, 1990, ch. 42, §§ 8(2)(a) and 92(2)(a).

*” See C. élect. art. L. 52-1. ;

* See §§ 7, 42 Rundfunkstaatsvertrag (RStV); § 11 cl. 1 ZDF-

Staatsvertrag fiir das Zweites Deutsches Fernsehen.

parties.” National private stations may offer advertising time

to the political parties during this period as well, but may

charge no more than cost, which naturally discourages

widespread paid advertising. In Japan, political advertising

is heavily regulated. Candidates cannot purchase television

or radio airtime, although they are allowed to advertise free of

charge during the campaign period on either the Japan

Broadcasting Corporation (NHK) or at government expense

on any privately owned radio or television station.” Political

parties (and other qualified political groups) may purchase

advertising time, but they may only broadcast advertisements

emphasizing policy positions without reference to specific

candidates.” Canada requires radio and television networks

to provide free advertising time to registered parties. Third

parties are not prohibited from purchasing airtime in

broadcast media, but they must conform to strict spending

limits which, as a practical matter, foreclose meaningful

third-party broadcast advertising.” Italy altogether prohibits

» .

”” See id.

” See $$ 7, 42 RStV. For all advertising, whether on public or private

channels, the “principle of gradated equality of chances”—a balancing

and fairness rule—obtains. § 5 cl. | Parteiengesetz. ;

*! See Notice No. 165 of the Ministry of Home Affairs, Nov. 29, 1994,

as amended by Notice No. 150, July 12, 1996; Law No. 100, art. 150,

Apr. 15, 1950, as last amended by Law No. 54, May 8, 1998 (Japanese

Election Law (Késhoku Senkyoh6—"JEL”)). JEL arts. 150, 150.1, 150.2

and JEL Enforcement Order arts. 111.4, 111.6 provide for five

advertisements of five and a half minutes each, plus a one-time

advertisement presenting a candidate’s biography.

* See, e.g., JEL arts. 139-200; JEL Enforcement Order arts. 108-128.

* See 2000 S.C., ch. 9, § 345.

“ Third-party advertising expenditures are capped at $1 50,000 during a

general election, of which no more than $3,000 can be used in any one

electoral district. See id. § 350.

paid political advertising in the national media while strictly

regulating political advertisements in other media channels.”

Outside the G-7, limitations on paid political advertising

during election periods are equally widespread. Sweden

allows no paid advertising on its broadcast television

channels and mandates impartiality in political reporting.”* In

Austria, paid political advertising is not permitted on the

public network.’ Israel has legislated a complex and

restrictive regime governing political broadcasts, sustained

under challenge before the High Court.** New Zealand limits

political broadcasts on television and radio to state-funded

timeslots near election day, and Australia imposes a complete

ban on radio and television campaigning, including issue

* See Law No. 28 of February 28, 2000 (statute on equal access to

media during election period and on political broadcasting); Italian

Communications Authority Decision No. 200/00/CSP of June 22, 2000

(implementing Law No. 28 of February 28, 2000); and House of

Parliament Scrutiny Committee on Public Broadcasting (RAI) Decision of

December 18, 2002 (implementing Law No. 28 of February 28, 2000).

Local private broadcasters, if they so elect, may allocate airtime to parties

free of charge, but only on an equal access basis and not in excess of two

advertisements per day per party. Local private broadcasters may also sell

time for political advertisements, but they may not charge more than 50%

of the normal commercial rate or sell more time than they have voiuntarily

allocated for free broadcasting. See also P. Barile, E. Cheli & S. Grassi,

Istituzioni di diritto pubblico, Padova, CEDAM, 103- 104, 295-296

(2002).

* See Law on Radio and Television, S.F.S. 1996:844.

” See Bundesgesetz iiber den Osterreichischen Rundfunk (as amended,

Bundesgesetzblatt, 1 No. 83/2001), §§ 13 (1), 14-17 (enumerating

exhaustive list of permitted advertising subjects).

™ See High Court of Justice Cases Nos. 869/92 and 931/92 (1992) (M.

Shamgar, Pres.): “But in the said periods before elections, there is a

limitation on election propaganda that is broadcast on the radio or

television .... This limitation is . . . an unavoidable necessity.”

advocacy, for the three days prior to election day.” In

Belgium, the limitation extends to three months before

election day and encompasses virtually all paid media and all

political matter.“” Broadcast and electioneering limitations of

shorter duration are also in place in Russia and Hungary,”' as

well as Grenada, Dominica, St. Vincent and the Grenadines,

and Nepal.” Other countries that severely limit paid political

advertising in broadcast media include Brazil, * the Czech

” See Broadcasting Act, 1989 §§ 69, 70 (N.Z.); Broadcasting Services

Act, 1992 (Cth), Sch. 2, Part 2, cl. 3A (Austl.); Special Broadcasting

Services Act 1991 (Cth) § 70(c) (Austl.). In Australian Capital Television

v. Commonwealth, 177 C.L.R. 106 (1992), the High Court of Australia

struck down an omnibus ban on the broadcast of political advertising on

the ground that it unconstitutionally limited political expression.

However, the court left intact a three-day blackout period. Justices

Brennan, Deane, and Toohey volunteered positive views on the

constitutionality of the three-day blackout period. See id. at 159, 175. No

challenges have been made to the blackout period since this decision.

” The limitation extends to paid billboards, telephone campaigns, and

television, radio, and cinema. See Loi du 4 juillet 1989 relative a la

limitation et au contréle des dépenses électorales engagées pour les

élections des Chambres fédérales, ainsi qu’au financement et a la

comptabilité ouverte des parties politiques, art. 5.

*" See Federal Law No. 19 F-3, On Election of the President of the

Russian Federation, art. 50, point 3; Federal Law No. 175-F3, On

Elections of Deputies of the State Duma of the Federal Assembly of the

Russian Federation, art. 58, point 3 (Russ.); Act C of 1997 on Electoral

Procedure 94 40-41, § (2) (Hung.).

*” These jurisdictions ban all or most forms of electioneering on polling

day, or on polling day and the day before. See Electoral Law, 1958, ch.

160, §§ 63(1), (3) (Gren.); House of Assembly (Elections) Act, ch. 2:01,

§§ 52, 54 (Dominica); Representation of the People Act, Electoral Law,

1982, § 41 (St. Vincent and the Grenadines); Election Code of Conduct,

2053 (1996) § A, ¢ 5 (Nepal).

** See Lei No. 9.504, que estabelece normas paras as eleigdes, arts. 26,

44 (1997).

Ps)

Republic, Denmark, Ireland, Malta, Malaysia, Norway,

Portugal, Senegal, Seychelles, Singapore, Slovakia, Sri

Lanka, Switzerland,” and Turkey.“° In the Americas as a

whole—with the exception of the United States, of course—

election period restrictions on paid advertising are essentially

ubiquitous.”

* In Norway, an advertisement paid tor by the National Norwegian

Union of Nurses was found to violate the advertising prohibition. See

European Platform of Regulatory Authorities, Working Group 2: Political

Advertising, Background Paper EPRA/2002/09, at 6-7, available at

http://www.epra.org/content/english/index2.html.

* See Federal Law Concerning Radio and Television of 21 June 1991,

§ 4, art. 18, ¢ 5 (“La propagande religieuse ou politique est prohibée”).

* See Michael Pinto-Duschinsky, F inancing Politics: A Global View,

13 J. Democracy 69, 76-77 tbl.2 (2002); European Platform of Regulatory

Authorities, supra note 44, at i. Turkey prohibits all political broad-

casting for seven days before elections. See Const., art. 32 (as amended

by Law No. 4756, May 21, 2002) (Turk.).

” See Ley 25.610, Reforma Cédigo Nacional Electoral, art. 3 (2002)

(Arg.) (32-day ban on broadcasts with “the purpose of promoting the

acquisition of votes by candidates for public office”); Ley Electoral de

1984, con reformas, incluyendo la Ley No. 2232 (2001), art. 120 (Bol.)

(election day ban); Lei No. 4.737 Cédigo Eleitoral de 1965, atualizado

com as modificagdes da Lei 9504/97, art. 250 (Braz.) (2-day ban); Ley

Organica Constitucional No. 18.700/88, sobre votaciones populares y

escrutinios, actualizada a octubre de 2001, art. 30(6) (Chile) (“electoral

propaganda” broadcasts allowed only from the 30th to the 3rd day betore

election); Ley No. 1536, Cédigo Electoral, actualizado con las reformas

de 1996, art. 79 (Costa Rica) (ban for day before election and month of

December); Ley Electoral y de Partidos Politicos de 1985, art. 223(c) &

Decreto 1-90 del Tribunal Supremo Electoral, 1990, art. 38 (Guat.) (36-

hour ban); Ley electoral y de las Organizaciones Politicas del 19.05.1981,

actualizada hasta DL No. 180-92, art. 74 (Hond.) (5-day ban on attack

ads); Codigo Federal de Instituciones y Procedimientos Electorales de

1994, con reformas de 1996 (“COFIPE”), art. 190(2) (Mex.) (3-day ban);

Ley Electoral de Nicaragua de 2000, art. 97 (Nicar.) (3-day ban); Ley No.

834/96 de 1996, Codigo Electoral Paraguayo, art. 290 (Para.) (political

advertising allowed only for 60 days leading up to 2-day ban); Ley No.

26859/97, Ley Organica de Elecciones de 1997, art. 190 (Peru) (24-hour

2. Indirect Limitations on Third-Party Political

Advertising Through Spending Limits Are

Also Widespread Among Democracies.

While direct constraints on the use of broadcast media for

political advertising are common, many countries also impose

general ceilings on third-party spending that indirectly but

effectively serve the same purpose. As noted earlier, Canada

places a $3,000 limit on spending by third parties within each

electoral district. This functions de facto as a near-complete

ban on paid television advertising by third parties.” Italy,

Japan, Mexico, and Costa Rica take a more extreme

position—they simply bar independent expenditures alto-

gether. An automatic and far-reaching ban on third-party

advertising obviously follows in these countries from their

prohibitions.” In still other jurisdictions, spending by third

parties counts against the spending limits of the candidates

they support, making it difficult for wealthy third parties to

flood broadcast media with paid advertisements. The laws of

ban); Ley Organica de Sufragio y Participacién Politica, art. 209 (1997)

(Venez.) (48 hours before start of elections, “all electoral publicity

will cease”).

* See supra note 34 and accompanying text.

* In Costa Rica, to undertake political-electoral publicity in any form,

a person must be designated by a political party to the Supreme Tribunal

of Elections. See Ley No. 1536, art. 85(d). Mexican law provides: “The

contracting of advertising in radio and television, either in favor or against

any party or candidate, by means of third persons, will not be allowed in

any case.” COFIPE, art. 48(13). Italian broadcasters may air paid

political advertisements only if they clearly identify the political party

paying for them—by direct implication, a ban on selling political airtime

to independent individuals or groups. See, supra note 35, Under Japanese

law, only groups and persons specifically permitted by statute to do so

may engage in electioneering activities (i.¢., political parties, qualified

political groups, and candidates). See JEL, art. 151.5.

—_

New Zealand, Belgium, and Nepal are examples of this

approach,"

Israel has been particularly proactive in recognizing that

any effort to mitigate corruption or imbalance is undone if the

regulatory ambit fails to reach independent expenditures.

Israeli law regulates “election propaganda,” and the High

Court of Justice took pains to define the term broadly.”'

Widespread evasion of the intent behind campaign finance

rules led State Comptroller and former Supreme Court Justice

Eliezer Goldberg to emphasize in an official report after the

2000 Knesset elections that “extra-party propaganda” con-

stitutes prohibited contributions under article 8 of the

Financing Law.”

BCRA, of course, does not come close to imposing the far-

reaching limitations on independent expenditures that are so

common to the rest of the world. It is exponentially more

selective, restricting specific entities (corporations and

unions) from using specific funds (treasury funds) for specific

activities (paid advertising) during specific time periods

(thirty or sixty days prior to an election). Before the passage

of BCRA, one scholar noted that although “[a]ccess to

political television advertising is . . . a matter dealt with in

” See Electoral Act, 1993 §§ 210, 214B, 221 (N.Z.); Loi du 4 juillet

1989, art. 4, § 2 (Belg.); Election Code of Conduct, 2053 § B, # 5 (1996)

(Nepal). Notably, India does regulate campaign spending by candidates

but nor third parties; as a result, its Supreme Court has observed that the

restrictions on candidates are “mere eye wash and no practical check on

election expenses” as needed “to attain a meaningful democracy.”

Godakh Yashwantrao Kankarro v. EV. alias Balasaheb Vikhe Patil, 1994

A.LR. (S.C.) 678.

*' See Case No. 869/92 (defining “electoral propaganda” as “{a]

broadcast that contains direct preaching for parties or lists of candidates;

an attack on a rival party or list; and also, any broadcast, whose dominant

effect is propaganda-wise”).

* See Report on the Results of the Audit of the Party Groups for the

Period of Elections for the Fifteenth Knesset 4§ 7-8 (1997).

virtually all jregulatory frameworks of campaigns[,] the

United States is truly exceptional.’ While BCRA’s targeted

limitations on paid advertising by corporations and unions

during election periods represent very modest steps by

international; standards, they move the United States

incrementally towards the mainstream of democracies that

regulate third-party political advertising to safeguard the

integrity of their electoral systems.

B. Other Democracies Have Found That Restric-

ti On Paid Political Advertising Are

Compatible With Free Speech.

The United States is not the only jurisdiction whose courts

have addressed restrictions on third-party paid political

advertising within the framework of a constitutionally

enshrined right to freedom of expression. Both Canada and

many European nations enjoy a well-developed free speech

jurisprudence, and courts in both places have asked whether

free speech ¢an accommodate restrictions on third-party

political advertising. An analysis of Canadian and European

judicial opinions yields a qualified answer in the affirmative.

1. The Canadian Supreme Court Has Indicated

That Restrictions on Paid Political

Advertising by Third Parties Can Survive

Constitutional Scrutiny.

In Canada, rights to freedom of expression and freedom of

association are protected under the Canadian Charter of

Rights and Freedoms.’ The Charter reflects a commitment

to these freedoms similar in scope and vigor to that of the

** Fritz Plasser and Gunda Plasser, Global Political Campaigning: A

Worldwide Analysis of Campaign Professionals and Their Practices 205,

216 (2002) (emphasis in original).

“4 Canadian Charter of Rights and Freedoms, Part | of the Constitution

Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, ch. 11,

§§ 2(b) and 2(d) (declaring as “fundamental” the “freedom of thought,

belief, opinion and expression” and the “freedom of association”).

U.S. Constitution. In the words of the Canadian Supreme

Court:

[This] Court has consistently and frequently held that

freedom of expression is of crucial importance in a

democratic society. . . . “It is difficult to imagine a

guaranteed right more important to a democratic society

than freedom of expression. Indeed a democracy cannot

exist without that freedom to express new ideas and to

put forward opinions about the functioning of public

institutions. The concept of free and uninhibited speech

permeates all truly democratic societies and institutions.

The vital importance of the concept cannot be over-

emphasized.”””

Clearly, freedom of expression is deeply embedded in

Canadian jurisprudence.

The seminal Canadian Supreme Court decision applying

constitutional scrutiny to restrictions on paid political adver-

tising by third parties is Libman y. Quebec (A.G.)°° In

Libman, the court considered a constitutional challenge to

Quebec’s Referendum Act, which required groups wishing to

participate in a referendum campaign to either join or affiliate

with a national committee formed for the purpose of

supporting one of the referendum options.”’ The Act also

provided for the financing of national committees and

allowed them and their affiliated groups to incur expenses (up

to prescribed limits) for the purpose of promoting or opposing

a referendum option. Groups that did not join or affiliate with

a national committee, however, were permitted to incur only

minor expenses, and were essentially banned from all paid

* Libman v. Quebec (A.G.), 1997] 3 S.C.R. 569, 151 D.L.R. (4th)

385, ¥ 28 (quoting Edmonton Journal y. Alberta (A.G.), {1989| 2 S.C.R.

1326, 1336).

” See Referendum Act, R.S.Q., ch. C-64.1, §§ 402, 403, 404, 406,

49 3, 413, 414, 416, 417 of Appendix 2 (as cited in Libman, 3 S.C.R. 569).

advertising.” The appellant in Libman argued that this

limitation unconstitutionally infringed his right to freedom of

expression under the Charter.

The Canadian Supreme Court recognized the need for such

restrictions and agreed with them in principle:

Freedom of political expression, so dear to our demo-

cratic tradition, would lose much value if it could only

be exercised in a context in which the economic power

of the most affluent members of society constituted the

ultimate guidepost of our political choices. Nor would it

be much better served by a system that undermined the

confidence of citizens in the referendum process.

Nevertheless, the court reluctantly concluded that the Refer-

endum Act’s near-total ban on third-party spending by

“individuals and groups who can neither join the national

committees nor participate in the affiliation system” went

too far.”

Significantly, however, in addition to evaluating the Refer-

endum Act itself, the Libman court went out of its way to

address a separate federal statute, the Canada Elections Act.”

Like the Referendum Act, the Canada Elections Act imposed

strict limits on third-party spending, but in a manner that did

allow for limited paid political advertising. Specifically, the

Act allowed third parties to spend up to $1,000 on political

“advertising expenses,” defined to include all costs incurred

“tor the production, publication, broadcast and distribution of

anv advertising for the purpose of promoting or Opposing” a

party or candidate during an election.” The statute also

* See Libman, 3 S.C.R. § 12 (setting forth strictly limited permissible

expenses).

® Id. 84.

“ 14.477.

" R.S.C., 1985, ch. E-2.

* Id. § 259.

21 -

designated certain “blackout” periods during. which all

persons were enjoined from election advertising.

By the time the Canadian Supreme Court took up Libman,

the Canada Elections Act’s $1,000 limit on third-parry

advertising expenditures had been held unconstitutional by

the Alberta Court of Appeal in Somerville v. Canada™

Because the Canadian government decided not to appeal the

lower court judgment in Somerville, however, the Canadian

Supreme Court could not review the lower court decision

directly. As a result, it took the highly unusual step in

Libman of expressing its clear disapproval of a ruling not

before it:

In Somerville v. Canada (Attorney General), the Alberta

Court of Appeal declared [the Canada Election Act’s

restrictions on third party advertising] to be unconsti-

tutional. With respect, we have already mentioned that

we cannot accept the Alberta Court of Appeal’s point of

view because we disagree with its conclusion re egarding

the legitimacy of the objective of the provisions.

The court explained:

We agree. . . with the analysis of the Lortie Com-

mission” . . , regarding the need to limit spending both

** See Somerville v. Canada (A.G.) (1996), 136 D.L.R. (4th) 205, § 6

(summarizing the black-out provisions codified as subsection 213(1) of

the Canada Elections Act, R.S.C., 1985, ch. E-2). The black-out periods

prohibited election advertising “for approximately the first 18 of 47 days

of a federal election campaign. This is followed by a period of 28 days

when advertising is permitted, up until the day prior to polling day, after

which it is again prohibited.” /d. 4 58.

™ See id.

Id. 479.

“ The Royal Commission on Electoral Reform and Party Financing

chaired by Pierre Lortie (“Lortie Commission”) was appointed to analyze

the role of money in the Canadian electoral process in response to

concerns about the levels and sources of expenditures during the 1988

federal election. Many of the Lortie Commission's recommendations

were adopted in the new Canada Elections Act, 2000 S.C., ch. 9.

by the principal parties (the national committees in the

case of a referendum) and by independent individuals

and groups in order to preserve the fairness of elections

and, in the present case, referendums. -

The court further suggested that the Canada Elections Act’s

limits on third-party advertising were tailored narrowly

enough to pass constitutional muster, in contrast to the

Referendum Act’s more severe restrictions on third-party

spending.”

Libman’s potential contribution to this Court’s analysis lies

in its explicit recognition that campaign finance laws

implicate multiple constitutional values, and that arriving at a

sensible solution requires a careful balancing of those

interests. ~ In the context of third-party expenditures, this

necessarily entails moderating the otherwise broad right to

free speech in order to preserve the integrity of the

democratic process. Of course, Libman’s premise is not

foreign to this Court’s deliberations. Rather, this Court has

implicitly adopted a nuanced balancing framework in many

of its own cases. As Justice Breyer noted during a discussion

on contribution limits:

[T]his is a case where constitutionally protected interests

lie on both sides of the legal equation... . In such

circumstances—where a law significantly implicates

competing constitutionally protected interests in com-

plex ways—the Court has ... balanced interests. And in

practice, that has meant asking whether the statute

burdens any one such interest in a manner out of

proportion to the statute’s salutary effects upon the

others. .. This approach is that taken in fact by Buckley

“? Libman, 3 S.C.R. 4 55-56.

“ Id. 477 (“In our view, there are alternative + eaten far better than

[the Referendum Act’s near-complete ban on unaffiliated third party

spending]... . The Lortie Commission’s recommendation on third party

expenses [which was incorporated into the Canada Elections Act as the

$1,000 spending limit] is one possible solution.”).

for contributions, and is found generally where

competing Constitutional interests are implicated, such as

privacy, First Amendment interests of listeners or

viewers, and the integrity of the electoral process.””

The Court should apply that approach in the present case,

recognizing that the fundamental constitutional value of pre-

serving the integrity of the democratic process justifies

BCRA’s modest imposition on speech.

In sum, Libman is a well-considered effort by the Canadian

Supreme Court to accommodate third-party spending

restrictions within constitutional parameters. It stands not

only for the proposition that constitutionally protected free

speech can tolerate restrictions on third-party political

activities, but that such restrictions are integral to a robust

democratic polity. In reviewing BCRA’s restrictions ¢. » aid

political advertising, this Court should take into account the

Canadian Supreme Court’s thoughtful analysis of a shared

constitutional concern.”

2. The European Court of Human Rights Has

Indicated That Restrictions on Paid Political

Advertising by Third Parties Are Compatible

with the Right to Free Speech.

In forty-four European countries, the right to freedom of

expression is guaranteed under Article 10 of the European

Convention for the Protection of Human Rights and

Fundamental Freedoms (the “Convention”).’' The Conven-

” Nixon, 528 U.S. at 400, 402-403 (2000) (Breyer, J., concurring)

(internal citations omitted).

The Canadian Supreme Court on June 27, 2003 cited Libman

approvingly for its holdings on fairness in the electoral process. See

Figueroa v. Canada (A.G.), 2003 S.C.C. 37, 9§ 49, 51.

"312 U.N.T.S. 222 (1950) (hereinafter “Convention”). The key pro-

visions of Article 10 provide:

(1) Everyone has the right to freedom of expression. This right shall

include freedom to hold opinions and to receive and impart

tion was the first document that gave “specific legal content

to human rights in an international agreement, and combined

this with the establishment of machinery for supervision and

enforcement.””” Violations of rights guaranteed under the

Convention are adjudicated by the European Court of Human

Rights (ECHR), which was established under the Convention.

As in the United States and Canada, the right to free speech is

considered by the ECHR to be of paramount importance:

“According to the Court’s case-law, freedom of expression

constitutes one of the essential foundations of a democratic

society and one of the basic conditions for its progress and

each individual’s self-fulfilment.””* “The Court recalls the

key importance of freedom of expression as one of the

preconditions for a functioning democracy.”

information and ideas without interference by public authority and

reyardless of frontiers.

(2) The exercise of these freedoms, since it carries with it duties and

responsibilities, may be subject to such . . . restrictions or penalties

as are prescribed by law and are necessary in a democratic society

... for the protection of the reputation or rights of others... .

” Ian Brownlie, Basic Documents in Human Rights 338 (1971).

"’ Unabhiingige Initiative Informationsvielfalt’ v. Austria, [2002]

E.C.H.R. 28525/95, § 34; see also Wierzbicki v. Poland, [2002] E.C.H.R.

24541/94, ¢ 31 (referring to “principles established in the case-law of the

Convention organs concerning freedom of expression, which constituted

one of the essential foundations of a democratic society”); Surek and

another v. Turkey, (1999) 7 B.H.R.C. 339, § 45 (“The court reiterates the

fundamental principles under its judgments relating to art 10. . . . Freedom

of expression constitutes one of the essential foundations of a democratic

society.”); Fressoz and Roire v. France, (1999) 5 B.H.R.C. 654, 4 45

(same).

™ Ozgiir Giindem v. Turkey, [2000] E.C.H.R. 2314493, 4 43

(“Freedom of expression constitutes one of the essential foundations of a

democratic society and one of the basic conditions for its progress and for

each individual's self-fulfilment. . . . Such are the demands of the

pluralism, tolerance and broadmindedness without which there is no

“democratic society.” /d. at 4 57).

Limitations on third-party spending were addressed by the

ECHR in Bowman v. United Kingdom.”> Bowman, a political

activist, challenged a_ British statute that prohibited

unauthorized third parties from spending more than five

pounds (“GBP”)—less than $10—during the period before an

election to convey information “with a view to promoting or

procuring the election or defeat of a candidate.”

Plaintiffs-Appellants in their brief cite Bowman to support

their assertion that “unfettered issue advocacy enjoys

international support.””” Purporting to quote directly from

Bowman, Plaintiffs-Appellants summarize the ECHR’s

opinion as follows:

{The ECHR decided] that a London woman could not be

charged with a campaign law violation for distributing

1.5 million copies of a voter guide . . . even though it

was . . . “distributed with a view to promoting the

election of the candidate with the stand on abortion most

acceptable to the [plaintiff] and “might in fact have the

tendency to influence certain voters in different

directions,” because “freedom of expression constitutes

one of the essential foundations of a democratic society,

[sic] and the government had failed to prove that such

““single’ issue campaigning . . . would distract voters

_{or] ‘distort’ election results.””* r

But that is not what the ECHR said in Bowman. In fact,

these statements were never made by the ECHR at all.

Plaintiffs-Appellants miscite and misattribute these quotes,

which actually come from a report made by a now-defunct

”> [1998] E.C.H.R. 24839/94, (1998) 4 B.HLR.C. 25.

Id. 4 13 (quoting subsections 75(1) and (5) of the Representation of

the People Act of 1983: “No expenses shall, with a view to promoting or

procuring the election of a candidate . . . at an election, be incurred by any

person other than the candidate, his election agent and persons authorized

in writing by the election agent.”).

” Brief of Plaintitfs-Appellants/Cross-Appellees National Right to Life

Committee et al., at 15 n.18.

Id.

investigative | body that referred the case to the ECHR for

adjudication.’ * What the ECHR actually said in Bowman was

the following:

Free elections and freedom of expression, particularly

freedom of political debate, together form the bedrock of

any democratic system ... . Nonetheless, in certain

circumstances the two rights may come into conflict and

it may be considered necessary, in the period preceding

or during an election, to place certain restrictions, of a

type which would not usually be acceptable, on freedom

of expression, in order to secure the “free expression

of the opinion of the people in the choice of the

legislature.”

The ECHR ultimately did strike down the British statute, but

on grounds similar to those articulated in Libman—tat the

spending limit of 5 GBP “operated, for all practical purposes,

as a total barrier to Mrs. Bowman’s publishing information

with a view to influencing the [election].

Like Libman, Bowman is widely understood to affirm the

principle that countervailing constitutional interests must be

balanced in reviewing campaign finance limitations, and that

such balancing permits restrictions short of a complete ban.”

The United Kingdom, for example, has interpreted the

ECHR’s decision as allowing reformulated _ statutory

restrictions on paid third-party expression; the Parliament

recently enacted a comprehensive election reform bill that

” See European Commission of Human Rights, Bowman Against the

United Kingdom, Application No. 24839/94, Report of the Commission

(adopted Sept. 12, 1996).

“ Bowman, [1998] E.C.H.R. 24839/94, 4 42-43.

*' Id. 47.

* The High Court of Justice of Israel also has endorsed a balancing

approach. See Cases Nos. 869/92 and 931/92 (Nissim Zvili v. Chairman

of the Ctrl. Elections Com., Ass'n for Human Rights v. Dir. Gen'l of the

Broadcasting Service) (Aharon Barak, J.) (“The solution is to be found in

an appropriate balance among the contradictory purposes.”).

modestly raises expenditure limits for third parties to meet the

Bowman standard.”

Ill. NEARLY ALL MAJOR DEMOCRACIES

IMPOSE RESTRICTIONS ON THE FLOW OF

MONEY THAT ARE FAR MORE ONEROUS

THAN BCRA’S RESTRICTIONS ON SOFT

MONEY.

There is no obvious analogue to the American soft money

problem overseas, for the problem relates to unique aspects of

the relationship in the United States between federal and state

political parties and between federal and state fundraising

rules. As explained in detail in the record developed at the

district court level, soft money relates to the unregulated

raising, transfer, and expenditure of nonfederal funds to

influence federal elections. Most other countries simply do

not have a dual system of government that provides

opportunities for funneling money from one level to the other

in contravention of the spirit and purpose of the campaign

finance laws.

The soft money problem, however, is one manifestation of

a larger problem common to many democracies: how to

prevent the massive influx of unregulated money into cam-

** See Political Parties, Elections, and Referendums Act (PPERA),

2000, ch. 41, § 131(3). PPERA amends a “permitted sum” exception to §

75(1) of RPA 1983, so as to elevate that sum from 5 GBP to 500 GBP,

plus one half pence for each elector in the district, for independent

expenditures supporting an individual candidate for Parliament. The limit

applies both to an individual making such an independent expenditure and

to groups of individuals acting as part of a “concerted plan of action.”

Part VI, § 94(S) of PPERA imposes a separate limit on spending money

“supporting or opposing registered political parties or parties that put

forward particular policies or unnamed candidates who hold particular

views or advocate particular policies.” The limit on such third-party

expenditures is 10,000 GBP for England and 5,000 GBP each for

Scotland, Wales, and Northern Ireland. See a/so Committee on Standards

in Public Life, Fifth Report at 10.59 (1998) (proposing how to implement

Bowman standards).

paigns from undermining the democratic process. Signif-

icantly, most foreign countries address that issue with a range

of regulations far more proscriptive than the closing of the

soft money loophole contemplated by BCRA.

First, as discussed above, nearly every major industrialized

country has far-reaching restrictions or bans on paid adver-

tising. Since advertising is an enormous component of cam-

paign expenditures, such laws dramatically reduce incentives

for introducing unregulated funds into the campaign process.

Moreover, most countries furnish public funds for cam-

paigns, further reducing the incentive for candidates and

parties to find fundraising loopholes. The G-7 nations

generally provide public funds to parties and candidates for

most or all national elections. Indeed, in the Library of

Congress survey, every country except India, Iran, and

Singapore had a system of direct public funding.” In a

separate survey of sixty countries—including many less-

developed countries with little regulatory infrastructure—

fully 70% were found to provide some form of direct public

funding.” The United States is thus again the exception to

the rule insofar as, apart from presidential campaigns, it does

not provide public funds for parties or candidates.

“4 See LOC Comparative Summary, supra note 3, at 4. Most calculate

the amount of support using a flat-rate formula, while a minority base

their calculation on a certain percentage of qualified expenditures. The

countries using flat-rate formulas are: Argentina, Australia, the Czech

Republic, France (with regard to parties), Israel, Italy, Japan, Mexico, the

Netherlands, Taiwan, and Turkey, and the United Kingdom. The

countries using a percentage of qualified expenditures are: Canada,

Greece, and France (with regard to candidates). See id. at 4-5.

*S See Michael Pinto-Duschinsky, Handbook on Funding of Parties

and Election Campaigns (Stockholm: International Institute for

Democracy and Electoral Assistance (IDEA), forthcoming 2003)

(overview available at http://www.europexxi.kiev.ua/english/program/

conference/007.html).

Finally, unlike the United States, most other major

democracies limit campaign expenditures. By controlling

campaign funding through the more aggressive means of

expenditure limits rather than—or in addition to—

contribution limits, other countries minimize incentives to

pursue ways of overcoming contribution limits. Among the

other Group of Seven nations, all with the exception of

Germany establish ceilings on campaign expenditures.

Canada places expenditure limits on candidates and political

parties (based | on the number of eligible voters) as well as on

third parties."° Italy establishes limits on expenditures by

candidates based on the number of citizens in a district, and

for parties based on the number of eligible voters.*’ The

United Kingdom imposes separate limitations for candidates,

parties, and third parties for different types of expenditures.”

In France, the law sets a general ceiling on campaign

expenditures for candidates and also imposes special

limitations on different types of expenditures to promote

fairness and prevent runaway election costs.” Japan imposes

spending limits for candidates according to a complex

formula based on the number of registered voters and the

number of seats in a district.” France, Italy, and Japan also

impose a second layer of control , by imposing contribution

limits on top of expenditure limits.”

Widening the circle beyond the G-7 nations, the Library of

Congress found in its comparative survey of campaign

See 2000 S.C., ch. 9, § 441.

*” See Law No. 515/1993. art. 7.

“ See PPERA §85.

xY : °

| See Law Library of Congress, France: Campaign Financing of

National Elections (Document No. 2000-9042) at 6 (2000).

See Law No. 100, art. 194, Apr. 15, 1950, as last amended by Law

No. 54, May 8, 1998 (JEL); art. 194 JEL, arts. 126. 127 of JEL

Enforcement Order. .

91 °

See LOC Comparative Summary, supra note 3, at 3.

finance laws in eighteen countries that expenditure limits are

maintained by a substantial majority of those surveyed.” The

expenditure ceilings are either set amounts, as in Greece,

Israel, and Russia, or based on the number of voters or

constituencies, as in Canada, India, France, Japan, Taiwan,

and the United Kingdom.”

Amici do not recount these facts to urge this Court to

disavow Buckley v. Valeo and uphold expenditure limits.

Amici recognize that the United States’ exceptionally

permissive system is motivated by the laudable desire to

protect First Amendment values and to promote political

discourse and participation. Rather, amici seek to illustrate

that the United States is located toward one extreme of the

democratic continuum with respect to how it regulates money

in its electoral system.” Against this backdrop, it is clear that

BCRA’s modest efforts to stem the flow of soft money that

continues to erode the democratic process are both per-

missible and desirable. BCRA is a badly needed step that

will begin to pull campaign finance in the United States back

from the fringe of international practice.

CONCLUSION

For the foregoing reasons, the provisions of the Bipartisan

Campaign Reform Act of 2002 relating to third-party political

advertising and soft money should be affirmed.

” See id. at 4.

”* See id.

™“ The United States is also located at one extreme in terms of voter

participation—it ranked 140 out of 163 countries in voter turnout during

the 1990s, behind Tanzania, Madagascar, Jamaica, Cameroon, and Chad,

and just ahead of Botswana, Kenya, Haiti, Mauritania, Ivory Coast, and

Pakistan. See International Institute for Democracy and Electoral

Assistance (IDEA) Voter Turnout Website, at http://www.idea.int/vt/

survey/voter_turnout_pop | .cfm.

* Counsel of Record

August 5, 2003

Respectfully submitted,

CHRISTOPHER J. WRIGHT *

TIMOTHY J. SIMEONE

YUL J. KWON

HARRIS, WILTSHIRE & GRANNIS LLP

1200 Eighteenth Street, N.W.

Washington, DC 20036

(202) 730-1300

THOMAS D. GRANT

LAUTERPACHT RESEARCH

CENTRE FOR iNTERNATIONAL LAW

5 Cranmer Road

Cambridge CB3 9BL

United Kingdom

011 44 1223 691 664

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