Measuring overbreadth: Using empirical evidence to determine the constitutionality of campaign finance laws targeting sham issue advocacy

Minnesota Law Review

Volumn 85, Issue 6, 2001, Pages 1773-1804

  Hasen, Richard L ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 0041805276     PISSN: 00265535     EISSN: None     Source Type: Journal    
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References (124)

1. See, e.g., Mills, v. Alabama, 384 U.S. 214, 218 (1966) (There is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs!,]... of course includling] the discussions of candidates.").
2. See, e.g., Eugene Volokh, Freedom of Speech and Speech about Political Candidates: The Unintended Consequences of Three Proposals, 24 HARV. J.L. & PUB. POI/Y 47, 69 (2000) (arguing in favor of the constitutionality of campaign contribution limits).
3. 424 U.S. 1 (1976) (assessing the constitutionality of a series of campaign contribution and expenditure limitations).
4. Id. at 32-38,45-47.
5. Compare Mich. State AFL-CIO v. Miller, 891 F. Supp. 1210, 1212 (E.D. Mich. 1995) (holding it constitutional to ban direct union campaign expenditures), rev'd on other grounds, 103 F.3d 1240 (6th Cir. 1997), with United Auto Workers Local Union 1112 v. Philomena, 698 N.E.2d 436, 485-86 (Ohio. App. 1998) (holding the opposite).
6. Compare Austin v. Mich. Chamber of Commerce, 494 U.S. 652, 658-60, 668-69 (1990) (holding it constitutional to ban independent corporate expenditures in candidate campaigns), with First Nat'1 Bank v. Bellotti, 435 U.S. 765, 776-78, 794-95 (1978) (holding it unconstitutional to ban corporate expenditures in ballot measure campaigns).
7. Compare Buckley, 424 U.S. at 80-82 (upholding disclosure provisions of the Federal Election Campaign Act), with Mclntyre v. Ohio Elections Comm'n, 514 U.S. 334, 346-47, 354-56 (1995) (striking down an Ohio law that required disclosure by a lone pamphleteer using her own resources to distribute a message in a ballot campaign). I explore the contrast between these two cases in Richard L. Hasen, The Surprisingly Complex Case for Disclosure of Contributions and Expenditures Funding Sham Issue Advocacy, 48 UCLA L. REV. 265, 269-76 (2000).
8. I say perhaps unintended because of the following sentence in Buckley: "It would naively underestimate the ingenuity and resourcefulness of persons and groups desiring to buy influence to believe that they would have much difficulty devising expenditures that skirted the restriction on express advocacy of election or defeat but nevertheless benefited the candidate's campaign." 424 U.S. at 45.
9. Hasen, supra note 7. For a critique and more restrictive reading of Buckley on this point, see Lillian R. BeVier, Mandatory Disclosure, "Sham Issue Advocacy," and Buckley v. Valeo: A Response to Professor Hasen, 48 UCLA L. REV. 285 (2000); see also Kirk L. Jowers, Issue Advocacy: If It Cannot Be Regulated When It Is Least Valuable, It Cannot Be Regulated When It Is Most Valuable, 50 CATH. U. L. REV. 65 (2000).
10. Buckley, 424 U.S. at 41 (citing §608(e)(l) of FECA).
11. Id. at 77 (citing section 434(e) of FECA).
12. Id. at 42-44, 76-78.
13. Id. at 77.
14. Id. at 44; see a/so id. at 80 (construing the term "expenditure" to have the same meaning in Section 434(e) as the Court earlier construed it in Section 608(e) of FECA).
15. Id. at44n.52.
16. Id. at 48-49.
17. Id. at 80-81.
18. I refer to explicit words or advocacy as "express advocacy"; sometimes such words are referred to as "magic words." See Glenn J. Moramarco, Beyond "Magic Words": Using Self-Disclosure to Regulate Electioneering, 49 OATH. U. L. REV. 107, 118-21 (1999) (exploring the term "magic words" as well as the origins of the term "express advocacy" in the Buckley Court's analysis).
19. This concept derives primarily from Buckley. See id. at 110-15 (explaining the origin of the term "issue advocacy" and the Buckley Court's reasoning behind it); see also Buckley, 424 U.S. at 74-82.
20. Contributions funding party sham issue advocacy are subject to disclosure (with no limits on the source of the funds) under federal regulations. See infra note 25. Under legislation passed last year, groups organized under section 527 of the tax code need to disclose contributions and expenditures funding their activities. Pub. L. No. 106-230, 114 Stat. 477 (2000). Other groups and individuals not organized under section 527, however, are immune from limits on sham issue advocacy.
21. See, e.g., infra note 79 and accompanying text.
22. DEBORAH BECK ET AL., ISSUE ADVOCACY DURING THE 1996 CAMPAIGN 3 (Annenberg Pub. Policy Ctr. Report Series No. 16, 1997), available at http://www.appc.penn.org/pub.htm.
23. Jeffrey D. Stanger & Douglas G. Rivlin, Issue Advocacy Advertising During the 1997-1998 Election Cycle, at http://appcpenn.org/issueads/report. htm.
24. See Issue Advocacy in the 1999-2000 Election Cycle, at http://www.appcpenn.org/issueads/1999-2000issueadvocacy.pdf, at 4.
25. Parties must disclose the source and amount of such contributions under regulations promulgated by the Federal Election Commission. 11 C.F.R. § 104.8(e)-(f) (2000).
26. These advertisements tend to be more negative than campaign advertising containing magic words. See BECK ET AL., supra note 22, at 9-10 (noting that issue ads contained more "pure attack" style ads than did other campaign advocacy formats).
27. See, e.g., Christian Action Network v. FEC, 110 F.3d 1049, 1055 (4th Cir. 1997) (striking down FEC regulations); Elections Bd. v. Wis. Mfrs. & Commerce, 597 N.W.2d 721, 725-26 (Wis. 1999) (striking down Wisconsin law).
28. 11 C.F.R. §100.22 (2000).
29. Christian Action Network, 110 F.3d at 1055-57 (affirming the district court's voiding of 11 C.F.R. §100.22(b)); Me. Right to Life Comm. v. FEC, 98 F.3d 1 (1st Cir. 1996).
30. 11 C.F.R. §100.22(b)(2) (2000).
31. See infra note 77 (discussing N.C. Right to Life v. Bartlett, 168 F.3d 705 (4th Cir. 1999)).
32. Other courts go further, holding that Buckley stands for the proposition that issue advocacy cannot be regulated constitutionally. E.g., Wash. State Republican Party v. Wash. State Pub. Disclosure Comm'n, 4 P.3d 808, 824 (Wash. 2000) (stating that Buckley forecloses limitations on issue advocacy expenditures because they "do not pose the danger of corruption found in Buckley to constitute a sufficient governmental interest to limit contributions where there is no risk of corruption"). I explain the reasons for my disagreement with such holdings in Hasen, supra note 7, at 277-78 (arguing that "a better reading is that the Supreme Court in Buckley was concerned that section 434(e) was unconstitutionally vague and overbroad").
33. Richard Briffault, Issue Advocacy: Redrawing the Election /Politics Line, 77 TEX. L. REV. 1751, 1779 (1999). A clearly set and sufficiently high contribution limit is also necessary.
34. See H.R. 380, 107th Cong. (2001) (Shays-Meehan); S. 27, 107th Cong. (2001) (McCain-Feingold). These bills, known as the "Bipartisan Campaign Finance Reform Act of 2001," would amend FECA's definition of express advo-cacy to include ads referring to a candidate within 60 days of an election. Id. § 201(b).
35. See Brown v. Socialist Workers '74 Campaign Comm. (Ohio), 459 U.S. 87, 88 (1982); see also Hasen, supra note 7, at 270 n.29 (explaining the harassment involved in Socialist Workers).
36. Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973).
37. Id. at 611-12.
38. Id. at 615.
39. Hasen, supra note 7, at 278-80 (footnotes omitted). Since I wrote this paragraph, an interesting example of a "false negative" has come to light. A group funded by the pharmaceutical industry calling itself "Citizens for Better Medicare" spent more than $7 million on television advertisements in competitive (so-called "battleground") states during the 2000 presidential election, advocating Medicare proposals similar to those advocated by then-Governor George W. Bush. The advertisements never mentioned Bush, his Democratic opponent for President, Al Gore, or any other candidates. See Press Release, Brennan Center, Candidates Come to Strategic Fork in California (Oct. 30, 2000), available at http://www.brennancenter.org/presscenter/pressrelease_ 2000_1030cmag.html. Such advertisements would be "false negatives," assuming they were intended to influence the election. Interestingly, the same group spent an additional $5.9 million (the heaviest spender on advertisements of all independent groups) through the end of October 2000 on advertisements supporting Republicans in key House races. See Political Television Advertising Rational and Feature Markets), tbl.9 (Oct. 30, 2000), available at http://www.brennancenter.org/cmagpdf7cinag2000. 10.30.table.pdf. The advertisements were coded as sham issue advocacy, mentioning candidate names but containing no express advocacy. See infra text accompanying Chart 3 (discussing coding of CBM advertising).
40. Hasen, supra note 7, at 279-80 (footnotes omitted).
41. Id. at 281.
42. Citations to data in this Essay without specific attribution to sources come from data supplied to the author by the Brennan Center.
43. Someone whose conduct falls into the second category may still bring an "as applied" challenge to the law. See infra note 62 and accompanying text.
44. Broadrick v. Oklahoma, 413 U.S. 601, 613 (1974).
45. Id. at 612.
46. Id. Other legal doctrines, such as the requirement of "narrow tailoring" under strict scrutiny, serve a function similar to overbreadth. See Richard H. Fallen, Jr., As-Applied and Facial Challenges and Third-Party Standing, 113 HARV. L. REV. 1321, 1347 (2000) (comparing overbreadth and the narrowly tailored requirement of strict scrutiny). Nonetheless, the Supreme Court has said that facial challenges to statutes outside the First Amendment can rarely succeed. United States v. Salerno, 481 U.S. 739, 745 (1987).
47. 413 U.S. 601 (1974).
48. Id. at 615. The Court stated that the substantial overbreadth test applied "particularly where conduct and not merely speech is involved." Id. In New York v. Ferber, 458 U.S 747 (1982), the Court extended the principle to a case involving "pure speech." Id. at 771. For further background on problems and issues related to overbreadth, see Richard H. Fallon, Jr., Making Sense of Overbreadth, 100 YALE L.J. 853 (1991);
49. Henry Paul Monaghan, Overbreadth, 1981 SUP. CT. REV. 1 (1981);
50. Martin H. Redish, The Warren Court, the Burger Court and the First Amendment Overbreadth Doctrine, 78 NW. U. L. REV. 1031 (1984);
51. see also LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 1022-32 (2d ed. 1988) (describing the overbreadth doctrine).
52. Broadrick, 413 U.S. at 617.
53. Id. at 617-18.
54. Justice Brennan, in his dissent in Broadrick, observed that the Court had "never held that a statute should be held invalid on its face merely because it is possible to conceive of a single impermissible application." Id, at 630 (Brennan, J., dissenting).
55. Redish, supra note 48, at 1064 ("[Broadrick] probably should be construed to dictate that if the majority of cases reached by statute does not involve protected conduct, the statute's overbreadth will not be deemed 'substantial,' even though it might be 'real.'").
56. 413 U.S. at 615; see also Massachusetts v. Oakes, 491 U.S. 576, 598 (1989) (Brennan J., dissenting) ("The test, of course, is the relative frequency of such violation [s]." (emphasis added)).
57. See Redish, supra note 48, at 1065-66 (presenting a similar numerical example showing the difference between relative and absolute numbers).
58. See id. at 1066 n.193 ("Of course, a construct which quantifies the number of instances of protected and unprotected conduct reached by a statute cannot be thought to comport with reality, since we can never predict exactly how many instances will be contained in either category.").
59. 491 U.S. 576 (1989).
60. Id. at 578.
61. Id. at 580.
62. Id. at 580-81.
63. Id. at 582-84.
64. Id. at 585-86 (Scalia, J., concurring in the judgment in part and dissenting in part).
65. Id. at 589. Justice Scalia added, Perhaps I am wrong in my estimation of how frequently the posings prohibited by this law are done for artistic purposes, or for family photographs-or in some other legitimate and constitutionally protected context I have not envisioned. My perception differs, for example, from JUSTICE BRENNAN'S belief that there is an "abundance of baby and child photographs taken every day" depicting genitals. But it is the burden of the person whose conduct is legitimately proscribable, and who seeks to invalidate the entire law because of its application to someone else, to "demonstrate from the test of [the law] and from actual fact" that substantial overbreadth exists. That has not been done here. Id. at 589-90 (citations omitted).
66. Id. at 598 (citation omitted). Justice Brennan added, Indeed, even if I were less confident that the statute was routinely violated by protected conduct-and the test, of course, is the relative frequency of such violations, not what we believe is the likelihood that such violations will in fact be prosecuted-I would reach the same conclusion. In Erznoznik v. City of Jacksonville, we struck down for overbreadth a statute making it a public nuisance to show films at a drive-in theater displaying bare buttocks, pubic areas, or female breasts, if the screen was visible from a public area. By way of justification we said: "[The statute] would bar a film containing a picture of a baby's buttocks, the nude body of a war victim, or scenes from a culture in which nudity is indigenous. The ordinance also might prohibit newsreel scenes of the opening of an art exhibit as well as shots of bathers on a beach. Clearly all nudity cannot be deemed obscene even as to minors." We saw no reason to inquire into the frequency with which such scenes appear at drive-in movies in Jacksonville; the fact that they might be shown, and sometimes were shown, was enough. The amount of protected conduct that occurs and quite plainly is covered by [the statute] is undoubtedly far greater than the speculative occurrences we found sufficient to establish substantial overbreadth in Erznoznik, where, in addition, the attendant penalties were puny by comparison. Id. at 598-99 (citations omitted).
67. See id. at 590.
68. Fallon, supra note 48, at 894.
69. Id. Professor Fallon states that "[tlhere is no sensible substitute, at least in hard cases, for a forthright judicial balancing." Id. In addition, Professor Redish similarly believes that the court should focus on the question of whether the legitimate goal of a statute could be achieved by a less restrictive means. See Redish, supra note 48, at 1066. See generally infra Part IH.E (applying balancing to issue advocacy question).
70. See Fallon, supra note 48, at 865-66 (describing campaign finance cases as a category of cases in which regulation is justified to prevent corruption and its appearance, but warning that "laws of this kind could be written to reach more speech and expressive activity than the compelling interest in avoiding corruption would warrant").
71. 424 U.S. 1 (1976).
72. Id. at 28-29.
73. Id. ("Appellants' first overbreadth challenge to the contribution ceilings rests on the proposition that most large contributors do not seek improper influence over a candidate's position or an officeholder's action. Although the truth of that proposition may be assumed, it does not undercut the validity of the $1,000 contribution limitation. Not only is it difficult to isolate suspect contributions but, more importantly, Congress was justified in concluding that the interest in safeguarding against the appearance of impropriety requires that the opportunity for abuse inherent in the process of raising large monetary contributions be eliminated.").
74. 528 U.S. 377 (2000). For a more detailed analysis of the case, see Richard L. Hasen, Shrink Missouri, Campaign Finance, and "The Thing that Wouldn't Leave," 17 CONST. COMMENT. 483 (2001).
75. 528 U.S. at 390.
76. 470 U.S. 480 (1985).
77. Id. at 482.
78. W. at 497-98.
79. Id. at 498. Compare the decision of the Court in Federal Election Commission v. National Right to Work Committee, 459 U.S. 197 (1982). There, the Court upheld a law prohibiting all corporations, even corporations with limited resources, from soliciting anyone but designated individuals (such as shareholders or corporation members) to make contributions to the corporation's political committee: "While [the law] restricts the solicitation of corporations ... without great financial resources, as well as those more fortunately situated, we accept Congress' judgment that it is the potential for such influence that demands regulation." Id. at 210. Then-Justice Rehnquist authored the opinion in both cases.
80. For example, in North Carolina Right to Life, Inc. v. Bartlett, 168 F.3d 705 (4th Cir. 1999), the Fourth Circuit rejected a state statute imposing reporting requirements on "political committees." The statute defined a political committee as "a combination of two or more individuals, or any person, committee, association, or organization, the primary or incidental purpose of which is to support or oppose any candidate or political party or to influence or attempt to influence the result of an election." Id. at 712. The court held the statute was vague and overbroad because it covered groups engaged only in issue advocacy, "compel [ling]. the speaker to hedge and trim."' Id. at 713 (quoting Thomas v. Collins, 323 U.S. 516, 535 (1945)). The vagueness of the North Carolina statute is evident: how do two or more people know when they have the incidental purpose to attempt to influence the result of the election? See Hasen, supra note 7, at 278. But the overbreadth holding required the court to make at least an implicit empirical judgment about the extent of genuine issue advocacy that would be covered by the statute's définition of political committee compared to the extent of sham issue advocacy that legitimately may be regulated by statute.
81. See generally, e.g., Planned Parenthood Affiliates of Mich., Inc. v. Miller, 21 F. Supp. 2d 740 (E.D. Mich. 1998); W. Virginians for Life, Inc. v. Smith, 960 F. Supp. 1036 (S.D. W. Va. 1996).
82. 23 F. Supp! 2d 766 (W.D. Mich. 1998).
83. 7d.at767.
84. See id. at 769 (citing Austin v. Mich. Chamber of Commerce, 494 U.S. 652 (1990)). At least it is constitutional as applied against corporations. See supra note 5 (noting controversy over whether such a requirement may apply to labor unions).
85. Right to Life of Mich., Inc., 23 F. Supp. 2d at 769.
86. See id. at 771. The court added that "there is a realistic danger that the Rule will significantly compromise the First Amendment protections of not only Plaintiff, but many other organizations which seek to have a voice in political issue advocacy." Id.
87. For more on the methodology, see JONATHAN S. KRASNO & DANIEL E. SELTZ, BUYING TIME: TELEVISION ADVERTISING IN THE 1998 CONGRESSIONAL ELECTIONS 6-8, 197-98 (2000), available at http://buyingtime.org [hereinafter BUYING TIME 1998]. This volume is the Brennan Center's extensive analysis of the 1998 data.
88. I will refer to these as "independent group" ads, even though some of these advertisements might have been paid for by individuals. Brennan Center researchers and I removed from the dataset those advertisements coded by the students as featuring candidates when the advertisements featured officeholders who were not running for office.
89. For a contrary position, see Bradley A. Smith, Soft Money, Hard Realities: The Constitutional Prohibition on a Soft Money Ban, 24 J. LEGIS. 179 (1998). But see Buckley v. Valeo, 424 U.S. 1, 79 (1976) (accepting argument that candidate and party speech is electioneering).
90. BUYING TIME 1998, supra note 84, at 15 fig.1.3.
91. Id. at 109 (noting that 41% of issue ads in the 1998 election period appeared in the 60-day period before the election, but just 7% of those ads referred to a candidate). According to Brennan Center researchers, the percentage drops to 2% in the 30-day period before the election. The dataset I used excludes advertisements featuring officeholders who were not running for election or réélection.
92. BUYING TIME 1998, supra note 84, at 193 ques.6. A similar question appears as Question 11 in the 2000 questionnaire.
93. Five storyboards of advertisements from the 1998 database and thirteen storyboards of advertisements from the 2000 database are currently missing from the Center's archive of storyboards. I will send a set of the storyboards in my possession to anyone who requests them by e-mail at rick.hasen@lls.edu.
94. See infra text accompanying Chart 3 (discussing the one significant case where I might have reached a different result).
95. See supra note 33 and accompanying text (discussing Professor Briffault's proposed expenditure triggers). Because direct mail is important in some races for the House of Representatives, see Richard L. Hasen, Entrenching the Duopoly: Why The Supreme Court Should Not Protect the Democrats and Republicans from Political Competition, 1997 SUP. CT. REV. 331, 352 n.125 (1998),
96. a more complete dataset should include direct mail as well, see David B. Magleby, Interest-Group Election Ads, 41, 49-51, in OUTSIDE MONEY: SOFT MONEY AND ISSUE ADVOCACY IN THE 1998 CONGRESSIONAL ELECTIONS (David B. Magleby ed., 2000) (discussing the role of direct mail in issue advo-cacy related to the 1998 Congressional elections).
97. For Professor Magleby"s follow-up study of .issue advocacy in 17 congressional races in 2000, see ELECTION ADVOCACY: SOFT MONEY AND ISSUE ADVOCACY IN THE 2000 CONGRESSIONAL ELECTIONS (David B. Magleby ed., 2000), available at http://www.byu.edu/outsidemoney/2000general/index.htm. The lack of data on direct mail is not much of a problem in considering the constitutionality of proposed federal legislation, which appears to target only radio and television advertising.
98. See, e.g., Ruth Marcus, The Advocates Pare Down the Ads: Issue Groups Spending Less, but Some Candidates Still Feel Heat, WASH. POST, Oct. 23, 1998, at Al (interviewing and quoting those who place such advertisements for independent groups as claiming that the amount of advocacy went down in 1998). But see Magleby, supra note 92, at 47 ("There was substantial interest-group election advertising in the 1998 elections. More groups ran issue ads in 1997-98 than in 1995-96, and the overall amount of money spent on issue ads also rose.").
99. See supra note 31 and accompanying text. For evidence that the public does not have much trouble distinguishing genuine issue advocacy from sham issue advocacy, see David B. Magleby, Dictum Without Data: The Myth of Issue Advocacy and Party Building, available at http://www.byu.edu/outsidemoney/dictum/index.html.
100. CMAG Advertisement Summary #1043, reprinted infra Appendix.
101. CMAG Advertisement Summary # 318, reprinted infra Appendix.
102. The AFL-CIO sponsored the only other advertisement coded as a genuine issue advertisement in the 1998 elections. Its audio portion reads, [Announcer]: A young cancer victim needs an outside specialist, but the HMO says no. A man with chest pain goes to the nearest emergency room, but his HMO won't pay. An elderly patient needs more hospital time, but her doctors are overruled by bureaucrats. Still Republicans in Washington are pushing an empty HMO proposal that won't stop these abuses. Tell Senator Coats to vote no on S. 2330 and demand a real patient protection law.
103. CMAG Advertisement Summary # 12 (on file with the Minnesota Law Review). The AFL-CIO ran this advertisement in a number of markets; the advertisements were otherwise identical except some ended with the announcer urging the viewer to call a different Senator or Representative instead. See, e.g., CMAG advertisement summary # 13 (on file with the Minnesota Law Review) (urging a call to Senator Snowe); see also BUYING TIME 1998, supra note 84, at 198 (discussing so-called "cookie cutter" ads that differ only by the candidate identified at the end of the advertisement). Brennan Center researchers divided the advertisements into two groups. One group featured officeholders who were not candidates for office in 1998. These advertisements were excluded from the totals used in this Essay because they would not be captured by a bright-line test. The researchers included those otherwise identical advertisements featuring candidates for office in 1998, counting such cookie-cutter advertisements as a single unique ad for purpose of the Chart below. The advertisement ran a total of 2905 times, but only 429 of those advertisements featured a candidate for office in 1998. Those 429 advertisements appear as part of the data covering the 60-day period before the election.
104. See supra note 97 (noting that cookie-cutter advertisements were treated as single unique advertisements for purposes of the chart).
105. This period includes data in the first row (0-30 days) plus the immediate 30 days before this period.
106. See supra notes 96-97 and accompanying text.
107. See supra note 96 and accompanying text.
108. CMAG Advertising Summary # 1544, reprinted infra Appendix.
109. 491 U.S. 576 (1989).
110. See supra notes 62-63 and accompanying text.
111. See supra note 33 and accompanying text.
112. See supra note 34.
113. See supra note 48.
114. Fallon, supra note 48, at 894 (footnote omitted).
115. 7d.at895.
116. See Buckley v. Valeo, 424 U.S. 1, 66-68 (1976); Hasen, supra note 7, at 270 (discussing these three interests).
117. See supra note 35 and accompanying text.
118. Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377, 390 (2000).
119. See infra Appendix.
120. Another form of narrow tailoring is the adoption of a "rebuttable presumption" that would allow the sponsor of an advertisement to put on evidence that the advertisement's true intent is genuine issue advocacy, not sham issue advocacy. Moramarco, supra note 18, at 125-27. The problem with such tests is that they reintroduce vagueness into the bright-line tests and therefore undermine such tests' constitutionality. See Jowers, supra note 9, at 85. The same function, however, would be served whenever an advertiser would go to court bringing an "as-applied" challenge to the law; the advertiser would claim that because the purpose of the advertisement was the promotion of issues rather than electioneering, the law could not constitutionally be applied to it. Another potentially promising narrowing approach is "targeting": Ads would be deemed electioneering only if they were targeted to the electorate of the identified candidate. Thus, an ad campaign in the months directly preceding the election that focuses on lobbying members of Congress irrespective of whether or not they are candidates would be treated differently than one that-by not-to-be-believed co-incidence-lobbies only those facing hotly contested races. Brennan Center for Justice, Five New Ideas to Deal With the Problems Posed by Campaign Appeals Masquerading as Issue Advocacy, available at http://www.brennancenter.org/programs/cmag_temp/cinag_recs.html (May 2000).
121. 494 U.S. 652 (1990).
122. Id. at 660.
123. See Fed. Election Comm'n v. Mass. Citizens for Life, Inc., 479 U.S. 238, 252 (1986) (describing separate segregated fund requirement as a "substantial," though not "absolute!,] restriction on speech").
124. Hasen, supra note 7.