A Morning at the Ministry of Speech By Jonathan Rauch National Journal, May 29, 1999 Early in the morning of Dec. 11, a few days before his 44th birthday, a political activist named Eric O'Keefe put on business trousers and a sports jacket, but decided not to wear a necktie. This was his small gesture of protest against the proceedings he was about to attend. He and his attorney breakfasted together, went over his testimony, and then drove to a state building in downtown Madison, Wis. In an undecorated and viewless conference room, O'Keefe swore an oath to tell the truth, and then submitted himself to 80 minutes of questioning by an assistant state attorney general who was seeking to determine whether O'Keefe was a lawbreaker. Jones vs. Clinton notwithstanding, a civil deposition is generally a tedious affair. Eric O'Keefe's deposition in Madison was of the usual undramatic sort. Precisely because the session was numbingly legalistic, however, it merits attention; for in that room, last December, you saw one of the several possible futures of campaign law in America. The prosecutor begins her inquiry by establishing that O'Keefe is the president of an organization called Americans for Limited Terms (ALT). One way the group agitates for term limits is by running radio and television ads in close races between one candidate who favors limits and another who opposes them. In 1996, ALT ran a $24,000 radio, phone, and mail campaign in the district of a Democratic state assemblyman named David Travis. The radio ads in this campaign are at issue as the prosecutor probes, in fine detail, how the group conducted its campaign. ``Who created the ad?'' she asks. ``When was it designed?'' . . . ``How do you decide what to say and what not to say, given that you have a 30-second soundbite?'' . . . ``What is the reason you particularly chose Travis' campaign?'' The state is also interested in the group's strategies for raising and spending money. ``How many donors are there?'' (``Hundreds.'') . . . ``How does the organization decide how much money to spend where?'' (``Well, that's complex . . .''). ``How do you decide which [races] are prime and which are marginal?'' In 1996, Travis was enraged to find himself targeted by ALT's ads. He believed the group to be a shadowy conduit for Republican money, so he sued ALT and also filed a complaint against it for running campaign ads without filing the proper registration and disclosure papers with the state elections board. The elections board, in turn, also sued ALT, which led to O'Keefe's deposition in December. Look at this situation one way, and you see a politician trying to ensure that the spirit of the law is followed, and a state bureaucracy doing its job. ``We brought enforcement actions as the elections board requested us to do,'' says Jim Haney, a spokesman for Wisconsin attorney general James E. Doyle. Change your angle of vision, however, and you may see something more like what Eric O'Keefe sees: ``state-funded opposition research.'' Here, on the face of things, is a powerful incumbent politician, outraged by criticism, using an agency of government to punish his critics in court. More: Here is a state prosecutor, her paycheck signed by (among others) Travis, demanding to know all about ALT's political methods, exhaustively and minutely. What, then, is happening in this deposition room? A conscientious exercise in law enforcement, or a chilling political inquisition? Never mind. Skip ahead to the really important question, which is: How, even in principle, could you tell the difference? Objectively speaking, you can't. This becomes clearer as the deposition continues. Q: In this [radio ad], do you include a phone number? A: I don't see one. Q: Do you recall what the rationale was behind not providing a phone number? A: No, I don't. Q: You really wanted people to call Dave Travis and talk about term limits, is that your testimony? A: We wanted Dave Travis to come around on term limits. That would be our preferred outcome. Q: But you didn't provide a number for people to call him? ALT's radio script bluntly criticized Travis for opposing term limits (``Part of the problem is Dave Travis. He refuses to support term limits . . .''), but it took care not to ask anyone to vote against him. Instead, it said: ``So call Travis today. Tell him to change his mind.'' Under the Supreme Court's holding in Buckley vs. Valeo, an ad that does not ``expressly advocate'' the election or defeat of a candidate is fully protected by the First Amendment and cannot be regulated or restricted by the government. Thousands of groups like O'Keefe's have taken advantage of this doctrine to blanket the country with ads that plainly take sides but stop just short of saying ``vote for.'' In Wisconsin, the state decided it had had enough, and it declared that ALT's ad--never mind the Supreme Court--was ``express advocacy'' because the ad had ``the political purpose of expressly advocating the defeat of Rep. Travis.'' Under this standard, the state needs to show that ALT's ads really were intended to swing votes against Travis, not to change Travis' mind. Thus the questions about the phone number. And thus, also, many other questions attempting to ascertain whether ALT's ads were, in Haney's apt distinction, ``political spots'' rather than ``issue ads.'' For instance: Q: Has ALT ever funded ads that aired during the time that [term limits] bills were being considered by committees in the state legislature? A: No. Q: Has ALT ever run ads that aired about term limits at any time other than just before an election? A: No. . . . Q: At any time that you aired these ads regarding Dave Travis, there was no bill pending before the legislature regarding term limits, was there? A: Not that I know of. Now, legally speaking, this is a logical and relevant line of questioning. If ALT really wanted to change Travis' position on term limits, rather than to defeat Travis, why didn't it lobby him during the legislative session instead of denouncing him at the height of the campaign? But wait a minute. Take a step back and a different sort of question appears. What does it imply when an advocacy group's choice of campaigning over lobbying becomes the subject of a government investigation? Answer: It implies that campaign finance law, in its flailing and thrashing to define and delimit what can and cannot be regulated as political advertising, is drifting toward the detailed state oversight of political speech. No greater affront to constitutional principles can be imagined, at least not in America in 1999. To their credit, Wisconsin's politicians understand that regulating ads that ``intend to influence an election'' would routinize intrusive depositions like O'Keefe's, and they do not want this. Searching for clarity and simplicity, Democratic and Republican state legislators are sponsoring reform bills that would draw a bright line. Speech could be regulated as ``express advocacy'' if, within 60 days before an election, it mentioned the name of any candidate or any party or any state office. Politicians would thus have the power to regulate speech criticizing them, or even talking about them, during the two months out of every two years when criticism is most likely to matter. In Wisconsin, Eric O'Keefe allows that such a rule would make criticizing a politician more difficult. Yet his eyes glow as he imagines rising to the challenge. Rhyming tricks? Symbols, likenesses, parables? Just give him time. ``We're not going to be shut up,'' he says. ``That doesn't mean we're going to break their laws, and we haven't. But that's our attitude.'' Other campaign finance reformers have already anticipated such stratagems. The leading proposal in the U.S. House, by Reps. Christopher Shays, R-Conn., and Martin T. Meehan, D-Mass., would define ``express advocacy'' to include any ad that urges, say, ``vote for'' or that refers to ``one or more clearly identified candidates'' within 60 days of an election or that expresses ``unmistakable and unambiguous'' support for, or opposition to, a candidate. This definition, which certainly covers the waterfront, denotes the speech that the law would restrict, not the speech it would protect. At about 11 a.m. on Dec. 11, O'Keefe's deposition winds down. As the questioning concludes, the prosecutor reminds the defendant and his lawyer that they must produce documents: ``any and all documents which relate to the contracting for, hiring of, organizing, creating, or directing of political advertisements at issue in this case.'' Including faxes, memos, notes. "I don't have any further questions.''
Full archive of Jonathan Rauch's National Journal columns (at Reason magazine)
Back to Overlawyered.com articles library / to top page
Reprinted by author's permission. All rights reserved.
Original contents of site © 1999 and other years The Overlawyered Group.
Technical questions: Email Webmaster