"Narrow Tailoring" Is Not the Opposite of "Overbreadth": Defending BCRA's Definition Of "Electioneering Communications"

Abstract

There are two separate reasons to reject the claim that BCRA's primary definition of "electioneering communication" is "substantially overbroad." First, the primary definition is valid in all its applications and, therefore, the "substantial overbreadth" doctrine, which compares the extent of a statute's invalid coverage to its valid scope, is inapposite. Second, even if the definition were to have some invalid applications, the extent of its invalid coverage would be significantly smaller than what Judge Leon believed.

The first reason suffices to sustain the definition's constitutionality, because the definition is narrowly tailored to achieve two combined goals: (1) clarity of the definition's coverage, and (2) efficacy of the regulations that depend on the definition. To determine whether a particular communication within the definition implicates the goal of regulatory efficacy, it is necessary to consider the communication's potential electoral effects as well as its motivation. Once these potential electoral effects are considered, the range of communications within the definition that do not implicate the goal of regulatory efficacy—and thus must be justified under "narrow tailoring" analysis by the simultaneous goal of definitional clarity—diminishes significantly.