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Drafting Campaign Finance Laws to Survive ChallengesThis article was adapted from two chapters ofWriting Reform: A Guide to Drafting State andLocal Campaign Finance Laws, D. Goldberg, ed.New York: Brennan Center for Justice, NYU Schoolof Law, rev. ed. 2004.

In today’s political climate, virtually all new cam-paign finance laws (and even some old ones) arelikely to be challenged in court. Some reformers maywelcome the challenge and accept the risk of defeat,hoping to push the envelope of permissible regula-tion. But others will prefer to meet current legal con-straints, to maximize the chance of achievingdurable reform.

In either case, reformers are far more likely to suc-ceed if they keep the prospect of challenge in mindat all times. Even before drafting begins, there ismuch work that can and should be done in antici-pation of litigation. If the work is done thoroughlyand publicized well, it may even forestall legal chal-lenge or help to narrow the scope of any lawsuit.

Following certain basic guidelines for legislativedrafting can also increase reformers’ chances of suc-cess, whatever their goals. Careful drafting enhancesany law’s chances of survival. Moreover, carefuldrafting helps to ensure that a court does not usesloppy draftsmanship as an excuse to avoid sub-stantive issues in a test case.

Even the most careful drafting will not help cam-paign finance reformers working on the local level,however, if the locality lacks the power under statelaw to enact its own campaign finance regime. Thisarticle flags some problem areas to which drafters

should be sensitive. It closes with a note of cautionfor local campaign finance advocates.

Legislative Findings

Many statutes begin with legislative findings. Thefindings recite facts that help to explain why the lawhas been enacted.

When a campaign finance law is constitutionallychallenged, a court may look to the findings for evi-dence of (1) a governmental interest that justifies theregulation or (2) an appropriate fit between the par-ticular measures adopted and the purpose to beachieved. The findings should help to establish thatthe asserted interest is real (rather than illusory or amatter of conjecture) and that the measures adoptedwill promote the interest to a legally sufficientextent. For example, if the state asserts an interest inpreventing corruption, the findings could summarizeevidence of corruption under the status quo. Themore novel the asserted interest, the more importantit is to provide well-documented findings.

To develop the facts that should be reflected in find-ings, a state legislature can hold formal hearings onthe need for a particular bill and the justification forits provisions. The legislature can also initiate for-mal investigation into issues of concern. These pro-ceedings facilitate collection of at least some of thedata the state will need to defend the new law,should it be challenged later.

A court may look to findings as proof that thedrafters considered appropriate facts before enact-ing the challenged law. Although statutes can sur-vive without findings, the prospects for survival are

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enhanced if the law includes them. The courts maybe more inclined to defer to the judgment of the leg-islature, for example, if the basis for that judgmentis reflected in explicit findings.

It is recommended to include a findings section inany campaign finance law. Reform-minded legisla-tors should be encouraged to hold the hearings andconduct the investigations that help to build the fac-tual case for the new law. If ballot initiatives are theonly avenue for reform, the drafters (and thoseworking with them) need to develop the facts thatcan be included in a findings section.

Findings may in fact be even more important whenreform is introduced through a ballot initiative.Some courts have been more willing to second-guessthe judgment of the voters than the judgment of thelegislature, in part because the referendum processdoes not have formal hearings or other formal fact-finding proceedings. To the extent that a findingssection provides evidence of fact development akinto that accomplished by legislatures, initiative pro-ponents are likely to improve their chances of judi-cial deference.

As a practical matter, findings may be presented as aseries of numbered sentences, each stating a separatefact that justifies legislative action (or passage of aballot initiative). Drafters must balance the need forcompleteness with the need for simplicity. The pointis to group facts into a reasonably short list of find-ings that explain the basis for the reforms adopted.

Finally, findings are far more useful if they areattuned to the specific jurisdiction in question.Boilerplate findings that could be made without any

real factual investigation will not necessarily hurt aneffort at reform, but they are likely to be of limitedvalue. Drafting jurisdictionally specific findings alsofurnishes an incentive to develop evidence needed todefend the law should litigation ensue.

Statutory Purposes

Explicitly stating a statute’s purposes may help toestablish the governmental interest that the stateseeks to advance in enacting a campaign finance law.Sometimes drafters include a separate section (usu-ally following the findings) with a statement of thestatutory purposes. Sometimes the findings sectionincludes declarations that identify the goals to beachieved with the law.

The statement of purposes should be carefullymatched to the provisions adopted in the body of acampaign finance law. In its decision in Buckley v.Valeo, the U.S. Supreme Court in 1976 initially rec-ognized only a limited range of state interests justi-fying common types of regulation. The list has notgrown substantially in the ensuing thirty years.Nothing in Buckley forecloses judicial recognition ofadditional justifications for reform, of course, butsome courts reject the legitimacy of any purpose notexplicitly blessed by the Supreme Court.

Goals that galvanize reformers and voters may notnecessarily be the purposes accepted by the SupremeCourt. Focus groups tend to report high positiveresponses to statutes aimed at equality, fairness, or“leveling the playing field,” while Buckley rejectedin no uncertain terms Congress’s effort to limitspending by moneyed interests to enhance the rela-tive voice of others.

Even though Buckley permits leveling of the playingfield through public funding systems that do notplace mandatory limits on spending but rather makeresources available to candidates who accept volun-tary spending limits, opponents of reform invariablytrot out every reference to “leveling the playingfield” as proof of an impermissible state interest. To

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Following certain basic guidelines for legislativedrafting can increase reformers’ chances of suc-cess, whatever their goals. Careful draftingenhances any law’s chances of survival.

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promote survival of bills or initiatives, drafters whouse the phrase should make clear that they are “lev-eling up” by providing public funding, not “levelingdown” by limiting spending. Listing purposes thatthe Supreme Court has spurned is a recipe for disas-ter, at least until the Court reconsiders its reasoning,and there is some risk even in listing purposes thatare technically open for judicial consideration buthave not yet been explicitly endorsed by the Court.To the extent that drafters wish to identify stateinterests that the Supreme Court has not considered,the statement should be clear that those interests aresupplemental to, and not a substitute for, recognizedgovernmental purposes.

Clarity and Precision

A campaign finance law that is vague (difficult tounderstand) or ambiguous (subject to more than oneinterpretation) will be subject to constitutionalattack. If individuals or groups cannot tell whetherthe law applies to them, or what types of conduct itcovers, they may be deterred from engaging in cer-tain activities that would actually be legal and in factare safeguarded by the First Amendment. The deter-rence factor is most serious if the law includes pro-vision for criminal penalties. To prevent this chill ofprotected speech and association, statutes must bedrafted so that they are clear and precise.

If statutes are not clear and unambiguous, a courthas two choices. First, it may construe the offendingterm to eliminate the problem, as the Supreme Courtdid in Buckley with respect to the definition of rela-tive to a clearly identified candidate. There is noguarantee, of course, that courts will interpret themeaning of vague or ambiguous terms as thedrafters intended. The court may create new prob-lems by eliminating the vagueness or ambiguity, asBuckley did. For example, Buckley’s attempt to“clarify” federal law resulted in the “magic words”test for express advocacy—exempting millions ofdollars of ads that avoided terms such as “vote for”or “vote against” from regulatory requirements,until enactment of the Bipartisan Campaign Reform

Act of 2002 (BCRA), also known as the McCain-Feingold bill.

The court’s second option when statutory lan-guage is vague or ambiguous is simply to invali-date the affected provision. If the provision is not“severable” from the rest of the law (because thelaw would not have been enacted without the pro-vision), the court may strike down the entirestatute.

To avoid problems of vagueness or ambiguity, keystatutory terms should be defined explicitly. The def-initions should use plain English and take care not tointroduce new vague or ambiguous language. Oneset of definitions should cover all of the new legisla-tive provisions, so that defined terms are used con-sistently. If the new law amends an old one, caremust be taken to ensure that definitions either areconsistent with existing law or expressly revise exist-ing provisions. Minimizing the use of complex sen-tences can also help to improve the clarity of thestatutory text.

Scope

Obviously, the needs of each state should determinethe scope of any campaign finance law governing itselections. But even when the system is deeply trou-bled, it is not necessarily a good idea to tackle every-thing at once. A simple, easily administered law thatfocuses on the state’s most pressing problems has abetter chance of withstanding assault than a longand complicated statute that seeks to close everyconceivable loophole. If initial steps do not cure theproblems, additional provisions can be added later,and there may then be a better factual record justi-fying closing the loopholes at that point.

Complicated statutes invite the claim that the legaland bookkeeping costs a group must incur just tounderstand and comply with the law cut substan-tially into its electoral activity. If the “practical effecton [a political organization] is to make engaging inprotected speech a severely demanding task,” the

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group may be entitled to an exception from the lawon First Amendment grounds.

Enforcement

If a campaign finance law is to have any teeth, itmust include enforcement provisions to deter viola-tion. Reformers may choose to impose civil liability,criminal penalties, or both. Here again, pullingpunches (at least initially) may be the better part ofwisdom. If violations abound notwithstanding con-sistent civil enforcement, more punitive measurescan be considered later.

Although reformers outraged by the undue influenceof money on politics may want to throw the book atviolators of campaign finance requirements, anystatute imposing criminal liability on violatorsdraws more intense judicial scrutiny. A criminalrecord is no laughing matter, and reformers cannotsimply assume that governmental authorities willuse criminal enforcement powers reasonably. Wherecriminal penalties are a possibility, courts take con-cern about vagueness or ambiguity very seriouslyand are likely to give every benefit of the doubt toopponents of reform. A punitive approach cantherefore be self-defeating.

Red Flags

Although the law of campaign finance is changingall the time, certain areas are better settled than oth-ers. In particular, some kinds of regulation havebeen struck down in whole or in part, either by theSupreme Court or by every lower court consideringthem. Including such regulations in a new law, how-ever attractive they may seem in principle, raises ared flag for opponents of reform.

To date, red-flag provisions have included off-yearfundraising bans, mandatory limits on spending bycandidates or their campaigns, and monetary limitson independent expenditures.

It is not impossible for a particular court to beinduced to uphold such provisions, given compelling

facts that distinguish the statute or initiative in ques-tion from others previously invalidated. But per-suading a court to buck the clear legal trend (andperhaps to test the limits of a Supreme Court prece-dent) means a steep, uphill battle. Moreover, includ-ing these measures in a larger reform package couldundermine the entire statute, if a hostile judge treatsthem as evidence of insensitivity to constitutionalconcerns. Maximizing the chances of having yourcampaign finance law upheld therefore meansavoiding these measures.

On the other hand, some jurisdictions may want topush the envelope of reform. Before 2000, a contri-bution limit of less than $1,000 qualified as a red-flag provision. But Missouri persevered indefending its limits ($275 for a representative, $550for a senator, and $1,075 for a statewide office) andwon. With the U.S. Supreme Court’s decision inNixon v. Shrink Missouri Government PAC, thelimits have been reinstated and other courts haveupheld contribution limits as low as $100 for leg-islative candidates in some states. Low contributionlimits might not have come off our red-flag list ifstates had not been willing to risk having such lim-its overturned.

Disclosure statutes that were not limited to expressadvocacy were a red flag until recently. With thedecision in McConnell v. FEC in 2003, it is nowclear that states can regulate campaign advertising inthe preelection period, even if the ads do not usemagic words. In McConnell, the congressional spon-sors of BCRA defended the statute’s “electioneeringcommunications” provisions in the Supreme Courtand overturned adverse lower court decisions inmost of the country.

In 2005, the Supreme Court decided to reviewRandall v. Sorrell, a case challenging Vermont’smandatory spending limits—another red flag. In theVermont case, a federal appeals court ruled thatBuckley did not impose a rule per se against suchlimits, and that Vermont had compelling interests in

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enacting them. We will have a decision in that caseby the end of June 2006.

Severability Clauses

A severability clause expresses the drafters’ intent topreserve parts of a campaign finance law that arefound constitutional even if other parts are invali-dated. In deciding whether to include such a clause,or how it should be drafted, reformers should con-sider carefully the potential consequences of partialinvalidation. Some critics of Buckley argue, forexample, that the “arms race” created by contribu-tion limits in the absence of expenditure limits isworse than no campaign finance regulation at all.Whether drafters want to implement any statutoryprovisions that survive scrutiny or prefer instead tohave certain provisions stand or fall together, theintent should be explicit in the text of the law.

It is also possible to have fallback provisions, in casepart of a statute is invalidated. Such a strategy maybe desirable when testing known red-flag provisions.In BCRA, for example, Congress posed a bright-linetest for electioneering communications that was ulti-mately upheld by the Supreme Court. Had it notbeen upheld, BCRA contained a back-up definitionoffering a second-best alternative for regulatingsham issue ads. The fall-back provision would alsohave been subject to challenge, of course, but typi-cally the back-up is designed to be less constitution-ally questionable than the principal provision.

A Note on Local Legislation

Local reform efforts raise a concern not encounteredin state-level campaign finance reform. Unlikestates, municipalities are not sovereign in their ownright. Localities are chartered entities limited to thepowers that the state confers upon them. Somestates give broad authority to local governmentthrough provision of home rule laws. Others retaintighter or even complete state control. The scope ofhome rule may be discerned from the state constitu-tion, state statutes, and judicial decisions interpret-ing those laws.

Local activists thus should not automaticallyassume that their municipality has the power toenact the campaign finance provisions of its choice.Reformers wishing to draft laws relating to financ-ing of elections in any jurisdiction smaller than thestate (counties, cities, towns, villages) should firstconfirm that such an enterprise is authorized. Statelaw may preclude political subdivisions fromadopting laws pertaining to elections or requireconsultation with the state. State law will also gov-ern the procedures that may be used to adopt andamend local laws, including campaign finance mea-sures. If the state has its own campaign finance legis-lation, that law may limit the scope of local reform.If a locality is severely constrained by miserly homerule provisions, its only option may be legislativeaction at the state level or a state constitutionalamendment.

Where local reform is possible, some localities havebeen successful in enacting constitutionally question-able provisions. As long as opponents of campaignfinance reform conclude that local laws are not worththe trouble of litigation, the questionable reforms stayon the books. For example, Albuquerque, NewMexico, had mandatory spending limits that wentunchallenged for decades. But as campaign financereform gained traction throughout the country, mon-eyed interests stepped up their opposition, and evenlocal laws—including Albuquerque’s—have comeunder attack (successful, in the case of this city).

Local reformers therefore should be vigilant toensure that their laws are constitutional and consis-tent with state law, unless they are seeking to mounta challenge to existing legal constraints. Mountingsuch a challenge at the local level carries specialrisks. If the law is passed by means of initiative, the

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Local activists should not automatically assumethat their municipality has the power to enact thecampaign finance provisions of its choice.

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locality may be unwilling to defend it vigorouslywhen it is challenged in court. If the local legislatureenacts the law, the locality may have trouble defend-ing against high-powered opposition.

Ultimately, of course, proponents of reform mustdecide what risks they are willing to take. To makethe decision wisely, however, reformers must firstunderstand fully what those risks are. For help inunderstanding constitutional constraints, reformersmight consult Writing Reform: A Guide to DraftingState and Local Campaign Finance Laws (BrennanCenter, 2004; http://www.brennancenter.org/pro-grams/prog_ht_manual.html). Attorneys at the

Brennan Center are also available at 212/998–6730to offer assistance.

R E F E R E N C E S

Bipartisan Campaign Reform Act of 2002, H.R. 2356.

Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam).

Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377 (2000).

McConnell v. FEC, 540 U.S. 93 (2003).

Deborah Goldberg is director of the Democracy Program atthe Brennan Center for Justice at NYU School of Law.

For bulk reprints of this article, please call (201) 748-8789.

National Civ ic Review DOI : 10.1002/ncr Summer 2006