February 16, 2001

Honorable Kevin G. Miller
Chairman, Senate Privileges and Elections Committee
General Assembly Building, Room 304
Capitol Square
Richmond, Virginia 23219

Re: H.B. 2568, "Stand By Your Ad"

Dear Chairman Miller:

It is our understanding that the Privileges and Elections Committee is considering H.B. 2568, which purports to reduce negative campaign advertisements by expanding the disclosure rules in television, print and radio advertisements.

H.B. 2568 should be abandoned because it infringes upon the constitutional rights of individuals who purchase political advertisements in Virginia and does not satisfy the requirements of the U.S. Constitution. The Bill is overbroad and will have the effect of chilling speech by imposing a unique burden on political speech with minimal if any gain by the State.

Constitutional free-speech guarantees play the essential role in our society of ensuring the formation of opinions and decisions free from government manipulation. The United States Supreme Court has long recognized that "compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment." Buckley v. Valeo, 424 U.S. 1, 64 (1976). More recently, the Supreme Court has recognized that one of the purposes of the First Amendment is "to protect unpopular individuals from retaliation Ï and their ideas from suppression Ï at the hand of an intolerant majority." McIntyre v. Ohio Elections CommØn, 514 U.S. 334, 357 (1995). Justice Stevens notes the importance of the decision of an individual not to disclose his/her identity when he writes that "[t]he decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of ones privacy as possible."" Id. at 341-42.

Because the proposed legislation contained in H.B. 2568 will directly restrict or otherwise burden core political speech and associational rights and it is a facially content-based restriction on political speech, the First Amendment provides its highest protection, and its most unforgiving scrutiny for restrictions on such speech. See, Meyer v. Grant, 486 U.S. 414, 425 (1988) (First Amendment protection of core election speech is "Âat its zenithØ" and the burden to justify restrictions on such speech is "well-nigh insurmountable.") If there are any state interests that may overcome First Amendment protection of political speech, such interests must be of the absolute first order, consistently and rigorously defended by the state, and clearly and presently threatened in a demonstrable manner. "Where at all possible, government must curtail speech only to the degree necessary to meet the particular problem at hand, and must avoid infringing on speech that does not pose the danger that has prompted regulation." Federal Election CommØn v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 265 (1986).

No such state interest exists here. The loss of anonymity coupled with the added expense of the expanded disclosure requirements is a significant burden not outweighed by any benefit to the State. In fact, the alleged State interest of reducing negative political campaign ads flies in the face of the most fundamental tenets of First Amendment protections encapsulated in language from the Federalist Papers to the most recent judicial precedents.

It is difficult to understand how the requirements of H.B. 2568 could conceivably deter actual corruption or the appearance of corruption in the election process. Advertising is, by its very nature, public for all to see, and the State's interest against "corruption" is already addressed through less problematic measures.

Virginia can and does meet the State's substantial interests by expressly prohibiting fraud in campaign advertisements and by imposing registration and reporting requirements to inform the public where the money for such advertisements comes from. With regard to such reporting requirements, the Supreme Court notes that "[t]hough such mandatory reporting undeniably impedes protected First Amendment activity, the intrusion is a far cry from compelled self-identification on all election-related writings." McIntyre, 514 U.S. at 355. The imposition of expanded disclosure requirements is overly burdensome and not narrowly tailored to serve an overriding state interest.

Further, the proposed legislation insults the intelligence of Virginians by assuming that they cannot evaluate the message in the absence of the expanded disclosures. "The simple interest in providing voters with additional relevant information does not justify a state requirement that a writer make statements or disclosures she would otherwise omit." Id. at 348.

For the foregoing reasons, we believe that passage of H.B. 2568 will impose a burden on political expression that the State has failed to justify. We have attempted to objectively outline legal strictures and precedents in an effort to avoid costly and acrimonious litigation for taxpayers and ourselves. We strongly urge you to consider the constitutional implications of the proposed legislation and the likelihood of the proposal being overturned by a court.

Founded in 1998, the Center for Individual Freedom is a non-partisan, non-profit organization with the mission to examine and focus attention on individual freedoms and individual rights guaranteed by the U.S. Constitution. Of particular importance to the Center are constitutional protections for the freedom of speech, most especially in the context of political campaigns.

Sincerely,

Renee L. Giachino

General Counsel