HOME / ABOUT THE FEC / COMMISSIONERS / FORMER COMMISSIONERS / COMMISSIONER BRADLEY A. SMITH / STATEMENTS AND OPINIONS
In the Matter of
The Coalition National Republican Congressional Committee, et al. |
MUR 4624
|
---|
COMMISSIONER BRADLEY A. SMITH
I.
I
voted in favor of the General Counsels Report of April 20, 2001 recommending that
the file be closed. However, while some
commissioners seem to feel this case indicates that the Commissions rules regarding
coordination and political committees do not sufficiently restrain political speech and
participation,[1]
I believe that this case is illustrative of the need for still further protections for
Americans wishing to participate in the political life of our nation. In particular, limiting the Commissions
reach in cases involving allegations of coordinated public communications to
communications involving express advocacy,[2] is, in my view, sound
interpretation of both the statute and judicial precedent, and is required by the
Constitution.
The broad facts and procedure of this case are substantially as put forth in the
Statement of Reasons filed by Commissioner Thomas and Chairman McDonald.[3] In March of 1997, the Democratic National
Committee (DNC) filed a complaint alleging that various Republican Party
affiliated committees, and a large number of business and trade associations supportive of
the general agenda of Republicans in Congress, had in 1996 committed massive violations of
the Federal Election Campaign Act of 1971, as amended (FECA or the
Act). This triggered a four-year
investigation of more than 60 committees and organizations plus several individual
respondents. The Commissions attorneys
took nine depositions, collected thousands of pages of documents, and interviewed numerous
other witnesses, before this case came to its merciful end.[4]
Despite the fact that the Commission has now found no violations in this case, I
strongly suspect that the original complainant, the Democratic National Committee,
considers its complaint to have been a success. The
complaint undoubtedly forced their political opponents to spend hundreds of thousands, if
not millions of dollars in legal fees, and to devote countless hours of staff, candidate,
and executive time to responding to discovery and handling legal matters. Despite our finding that their activities were not
coordinated and so did not violate the Act, I strongly suspect that the huge costs imposed
by the investigation will discourage similar participation by these and other groups in
the future.[5]
We cannot fault
the complainant DNC for pursuing its political goals through the legal tools made
available to it, but nor can we on the Commission blind ourselves to the fact that the
substantial majority of the complaints filed with the Commission are filed by political
opponents of those they name as respondents. These
complaints are usually filed as much to harass, annoy, chill, and dissuade their opponents
from speaking as to vindicate any public interest in preventing corruption or the
appearance of corruption.[6] This knowledge makes it particularly important
that we be sensitive to the possibility that our interpretations of the Act can, and
sometimes do, chill what is and ought to be constitutionally protected political speech.
In this case, the Office of
General Counsel concluded that it could not prove that the activities and disbursements of
the respondents were coordinated with candidates and committees pursuant to the
regulations promulgated by the Commission only last December. See 11 C.F.R. § 100.23. These coordination rules were themselves a
salutary effort to address problems of vagueness and overbreadth in the Commissions
prior practices, which lacked any clear definition of cooperation, consultation, or
concert, see 2 U.S.C. § 441a(a)(7)(B)(i), and provided inadequate guidance
to groups and individuals as to what activities would be deemed coordinated
under the Act. See Federal Election
Commission v. Christian Coalition, 52 F. Supp.2d 45 (D.D.C.
1999); see also Clifton v. Federal
Election Commission, 114 F.3d 1309 (1st
Cir. 1997). Groups and individuals who
petition the government, contact their elected representatives, or perhaps are friends or
acquaintances of representatives or Congressional staffers, former staffers, or friends
and acquaintances of the same, need guidance on what conduct falls short of coordination
without concluding that the only clear way to avoid liability is to refrain from making
independent expenditures. The conduct
standard implemented by the new coordination rule is a vast improvement over the past
practices of the Commission, providing much-needed guidance to makers of independent
expenditures.[7]
Unfortunately, in
promulgating 11 C.F.R. § 100.23, the Commission provided scant guidance to groups engaged
in issue advocacy,[8]
by not addressing the question of whether a content standard, as well as a conduct
standard, would be required before coordinated public communications would be subject to
the rule.[9] This failure is important, because as this case
demonstrates, the conduct standard alone does not provide an adequately bright line to
prevent the specter of investigation and litigation from chilling constitutionally
protected speech. When a person decides to
make independent political expenditures, he opens himself up to two potential burdens
under the Act. The first burden is to report
those independent expenditures in excess of $250.00.
See 2 U.S.C. § 434(c). The
second is to defend against allegations that the advocacy was somehow authorized by or
coordinated with a candidate which, if true, would lead to still greater limits on the
persons political activity. See
2 U.S.C. § 431(17). Respondents can spend
substantial sums defending themselves against such allegations, and this possibility will
cause many speakers to avoid engaging in what ought to be constitutionally protected
speech. Thus, a bright line test is needed. A content testexpress
advocacyprovides such a bright line. If
a financier of general public communications is not willing to defend against charges that
his speech was authorized by a candidate, or prefers not to disclose the sources of his
funding, see e.g. NAACP v. Alabama, 357 U.S. 449 (1958), McIntyre v. Ohio
Elections Commission, 514 U.S. 334 (1995), he can simply delete from his message words
of express advocacy and speak on any other topic of his choosing. If he is investigated nonetheless, he can be
assured that the investigation will be short, non-intrusive, and inexpensive, merely by
demonstrating the absence of express advocacy in his communications. Absent a content standard, however, no such
immediate defense is available if the Commission launches an investigation into the
alleged coordination with candidates. Further,
such an investigation is likely to be highly intrusive, as is demonstrated by this case
and another recent high-profile matter eventually resulting in no finding of a violation,
MUR 4291 (American Federation of Labor and Congress of Industrial Organizations). The investigation can include extensive rifling
through the respondents files, public revelations of internal plans and strategies,
depositions of group leaders, and the like. Such
allegations and investigations may be avoided only by completely avoiding all contact with
candidates, because even minimal contact could trigger a credible allegation. Oddly, the less immediately obvious evidence there
is that the conduct would meet the standard of 11 C.F.R. § 100.23, the more intrusive the
investigation is likely to be, as the Commission searches for evidence of the veracity of
the complaint. The effect of the rule becomes
essentially the same as that of the rule struck down in Clifton; it treads
heavily upon the right of citizens, individual or corporate, to confer and discuss public
matters with their legislative representatives or candidates for such office, and is
therefore, patently offensive to the First Amendment. 114 F.3d 1309, 1314 (1st
Cir. 1997), cert. denied, 522 U.S. 1108 (1998).
With that in mind, I believe that the Act, the Constitution, judicial precedent,
and sound public policy require us to limit our enforcement to cases in which
communications, whether or not coordinated with a candidate, expressly advocate the
election or defeat of candidates for federal office.
Failure to include such a content standard has and will have a chilling effect on
political participation and speech.
II.
Institutional competence and
prudence requires that executive agencies charged with enforcing the law, even more than
the courts, ought to adhere to the general precept of not unnecessarily deciding
Constitutional issues. Thus I first analyze
our authority under the statute. I believe
that the statute, as interpreted by the Supreme Court, does not authorize us to regulate
issue advocacy, even when such advocacy is coordinated with a candidate.
Nor do I believe that non-corporate respondents
violate the Act through coordinated issue advocacy. In
Buckley, the Supreme Court held
that the phrase for the purpose of influencing an election or
nomination, appearing in the definition of expenditure at 2 U.S.C.
section 431(9)(A)(i), limited the meaning of expenditure to communications
containing express advocacy, at least when, as in this case, the speaker was not a
political committee. 424 U.S. 1 at 79-80. After the Buckley decision was handed down,
Congress, fully aware of the Courts restrictive interpretation of the term
expenditure in section 431(9)(A)(i), used the term expenditure in
amending section 441a(a)(7)(B)(i). Section
441a(a)(7)(B)(i) provides that expenditures made by any person in
cooperation, consultation, or concert with
a candidate
shall be considered
to be a contribution to such candidate. (emphasis added). Congresss post-Buckley
use of the term expenditurewhere the statutory definition of the term as
interpreted by the Supreme Court is limited to communications containing words of express
advocacy indicates that even coordinated public communications must contain express
advocacy before they can be transformed into regulable in-kind contributions.[11]
Indeed, Congress has responded to the courts on
this topic before. After Buckley, Congress limited the disclaimer provisions to
apply specifically to express advocacy communications, 2 U.S.C. § 441d(a), even where
those communications are coordinated with a candidate.[12] If Congress had intended for coordinated issue
advocacy communications to be within the jurisdiction of the FECA, it surely would have
required a disclaimer for such communications.
III. A.
The starting point for any analysis of
the constitutional and policy issues involved in enforcing the FECA is the recognition
that [t]he Acts contribution and expenditure limitations operate in an area of
the most fundamental First Amendment activities. Buckley, 424 U.S. at 14. With that in mind, a key concern of the Supreme
Courts Buckley decision was to prevent the
Act from having a chilling effect on speech pertaining to public issues and
affairs. See 424 U.S. at 41, n. 47. The Court noted that:
vague laws may not only
trap the innocent by not providing fair warning or foster arbitrary and
discriminatory application but also operate to inhibit protected expression by
inducing citizens to steer far wider of the unlawful zone
than if the
boundaries of the forbidden areas were clearly marked. Because First Amendment freedoms need
breathing space to survive, government may regulate in the area only with narrow
specificity.
424 U.S. at 41, n. 48
(citations omitted).
In Buckley, the Supreme
Court accepted contribution limits as constitutionally permissible, but struck down limits
on expenditures as violations of the First Amendment.
There were three major reasons for providing greater protection to expenditures
than to contributions. First, the Court
noted that limits on contributions were a lesser burden on speech because a contribution,
unlike an expenditure for public communications, did not communicate the underlying
basis for the support. 424 U.S. at 21. Second,
limits on expenditures reduce [] the quantity of expression by restricting the
number of issues discussed, the depth of their exploration, and the size of the audience
reached. Id. at 19. Limits on
contributions to candidates, on the other hand, do not necessarily have the effect of
materially reducing political discussion because they leave the contributor free to
become a member of any political association and permit such associations to
aggregate large sums of money to promote effective advocacy. Id. at 22.
Finally, limits on contributions focus [] precisely on the problem of
corruption
. By contrast,
limitations on expenditures raise the concerns of vagueness that cause citizens to
steer far and wide of the unlawful zone. Id.
at 41, n. 48.
Thus, in analyzing section
608(e)(1) of the Act, which provided that [n]o person may make any expenditure ...
relative to a clearly identified candidate during a calendar year which
exceeds
$1,000, the Court held that the use of so indefinite a phrase as
relative to a candidate fails to clearly mark the boundary between permissible
and impermissible speech. Id. at
41. It continued:
The constitutional deficiencies [of vagueness] can be avoided only by
reading §608(e)(1) as limited to communications that include explicit words of advocacy
of election or defeat of a candidate.
[F]unds spent to propagate ones views
on issues without expressly calling for a candidates election or defeat are thus not
covered
. [I]n order to preserve the
provision against invalidation on vagueness grounds, §608(e)(1) must be construed to
apply only to expenditures for communications that in express terms advocate the election
or defeat of a clearly identified candidate for federal office.
Buckley at 43-44.
These same
concerns arose when the Court considered the Acts disclosure provisions. Once again, the Court could have regulated
issue advocacy, but did not. Rather, the
Court chose again to give the term expenditure a limiting construction. The Court stated:
[T]he [disclosure] provision raises serious problems of vagueness,
[that] may deter those who seek to exercise protected First Amendment rights. Section 434(e) applies to [e]very person ...
who makes contributions or expenditures. Contributions
and expenditures are defined ... in terms of money or other valuable assets
for the purpose of influencing the nomination or election of candidates for
federal office. It is the ambiguity of this
phrase that poses constitutional problems.
***
There is no legislative history to guide us in determining the scope
of the critical phrase for the purpose of ... influencing
. Where the constitutional requirement of
definiteness is at stake, we have the further obligation to construe the statute, if that
can be done consistent with the legislative purpose, to avoid the shoals of vagueness.
***
When we attempt to define expenditure ... we encounter
line-drawing problems of the sort we faced in §608(e)(1).
Although the phrase for the purpose of
influencing an election
or nomination, differs from the language used in §608(e)(1), it shares the same potential
for encompassing both issue discussion and advocacy of a political result.
Id. at 76-79. (Citations omitted). The Court worried that the general
requirement that political committees and candidates disclose their
expenditures could raise similar vagueness problems, for political committee
is defined only in terms of the amount of annual contributions and
expenditures, and could be interpreted to reach groups engaged purely in issue
discussion. Id. at 79. However, because the vagueness problems associated
with the term political committee had already been largely resolved due to
narrow readings of the statute by lower courts, it was not the effect upon groups defined
as political committees under the Act that particularly concerned the Court.
The Court was more
concerned about the effects that a vague and overbroad law could have upon the otherwise
lawful First Amendment activities of other groups and individuals.[15]
The Court, therefore, narrowed the term
for the purpose of influencing to save the definition of the terms
expenditure and contribution from being unconstitutionally
overbroad: To insure that the reach of §434(e) is not impermissibly broad, we
construe expenditure ... in the same way we construed the terms of
§608(e)to reach only funds used for communications that expressly advocate the
election or defeat of a clearly identified candidate.
Id. at 80. Thus, the Court
concluded:
[Section] 434(e) as construed imposes independent reporting
requirements on individuals and groups only in the following circumstances: (1)
when they make contributions earmarked for political purposes or authorized or requested
by a candidate ... to some person other than a candidate or political committee, and (2)
when they make expenditures for communications that expressly advocate the election or
defeat of a clearly identified candidate.
***
As [constitutionally] narrowed, §434(e), like §608(e)(1), does not
reach all partisan discussion for it only requires disclosure of those expenditures that
expressly advocate a particular election result.
Buckley at 80.
In reviewing the Buckley
decision then, we see that each time the Buckley Court considered the definition of
expenditure, it narrowly interpreted the term to avoid vagueness or
overbreadth.[16]
Concerns of vagueness and overbreadth were foremost in the Buckley Courts
thinking in interpreting all aspects of the FECA. Most
importantly, it found that the qualifying phrase for the purpose of
influencing, which is also part of the Acts definition of
contribution, 2 U.S.C. § 431(8)(A)(i), could be saved from vagueness problems
only by construing it as applying to words that in express terms advocate
election or defeat.
What the Court did
not specifically address is whether it intended the same limiting construction of the term
expenditure it had applied to sections 608(e)(1) and 434(e) to apply to
section 608(c)(2)(B). Clearly the Court did
not intend for independent issue advocacy to be regulated, but one might argue that in
holding that authorized or requested expenditures are
contributions under the Act, the Court meant to include coordinated issue
advocacy. However, the Buckley
Courts example of a coordinated expenditure that would be treated as a
contribution, itself taken from the legislative history of the Act, is an express advocacy
ad.
[A] person might purchase billboard advertisements endorsing a
candidate.... [I]f the advertisement was placed in cooperation with the
candidates campaign organization, then the amount would constitute a gift by the
supporter and an expenditure by the candidatejust as if there had been a direct
contribution enabling the candidate to place the advertisement himself.
Buckley at 46, n. 53 (emphasis
added). Nothing suggests that the Court did
not intend to extend to section 608(c) the narrow definition of expenditure it
had given the term in section 608(e). Of course, it is possible that the Court never
considered that a candidate would request or authorize media advertisements
that did not expressly advocate the election or defeat of one candidate or another. After all, the legal distinction between express
ads and issue ads did not exist before Buckley, so there would have been no reason
for a campaign to request an ad that did not expressly advocate election or defeat. Still, the most probable interpretations of Buckley
are that it either limited the term expenditure in section 608(c)(2)(B) to
disbursements for express advocacy, or simply did not address the issue. That the Court intended to find coordinated issue
ads to be covered by the Act seems the least probable interpretation.
The question we face is whether, in light of Congresss actions, the holdings
in Buckley and its progeny, the Constitutional concerns raised by the Supreme Court
and lower courts, and our position as officials of the executive branch who have
independently taken an oath to uphold the Constitution,[17] we can or should interpret
the Act as reaching coordinated spending for issue advocacy communications.
In considering the
question, I note first that each of the Constitutional concerns raised by the Buckley
Court as reasons for providing greater protection to expenditures than to contributions is
present in the context of coordinated issue advocacy disbursements. First, the coordinated issue advocacy
disbursements do more than merely serve as a general expression of support;
they do in fact communicate the underlying basis for the support. See Buckley, 424 U.S. at 21. Second, restrictions on coordinated issue advocacy
spending are, as a practical matter, likely to lead to a reduc[tion] in the quantity
of expression by restricting the number of issues discussed. See id. at 19. Arguably, of course, these groups might simply run
their ads independently, so that no such speech reduction would result. As we know, however, groups regularly work with
members of Congress to promote shared agendas. As
the Buckley Court recognized, [d]iscussions of those issues, and as well more
positive efforts to influence public opinion on them, tend naturally and inexorably to
exert some influence on voting at elections. Id. at 43, n. 50. If the Act applies to coordinated issue advocacy,
many groups will be unable both to work with elected representatives and to run ads
attempting to influence public opinion on issues of mutual interest. In short, the groups will be asked to surrender
either their rights of free speech and association or their rights of speech and to
petition for redress. As already noted, the
threat of investigation is itself often sufficient to chill speech. It is exactly our job, as the administrative
agency with expertise in enforcing the Act, to recognize the practical effects of
differing interpretations of the Act and to set policy accordingly.
Most importantly, efforts to regulate coordinated issue advocacy raise exactly the
vagueness concerns at the heart of Buckley. For example, if Common Cause, having coordinated
its legislative efforts with Senator McCain, were to also run advertisements in support of
its agenda that mentioned the Senator, whether or not their ads would violate the Act
would depend upon whether or not the Commission believed that they were for the
purpose of influencing an election. This
is the exact standard that the Supreme Court found, without more, to be unacceptably vague
even in terms of the less burdensome disclosure provisions of the Act.
Because of the resulting vagueness, see Buckley, 424 U.S. at 41, n. 48, we
can anticipate that groups will, in the future, steer far wider of the
unlawful zone
than if the boundaries of the forbidden areas were clearly
marked. The present case illustrates
that only too well. The enormous costs,
imposition, and length of the investigation that has occurred in this case suggests that
at least some of the more than 60 respondents involved, and who knows how many other
groups and individuals that have witnessed the debacle, will steer far wide
rather than risk a lengthy investigation, even if that investigation does ultimately lead
to a finding of no probable cause.[18]
At one time, a
majority of the Commission seems to have recognized this vagueness problem. On June 24,
1999, Commissioners Wold, Mason, and Sandstrom, joined by then Commissioner Elliott,[19]
issued a statement of reasons rejecting the enforcement of coordination cases under a
vague, electioneering message content standard.[20]
The Commission majority at that time correctly concluded that the vague
electioneering message standard offered no guideposts for free discussion,
even in cases where such discussion was coordinated or presumably coordinated with a
candidate, writing:
Shortly thereafter, the Federal District Court for the District of Columbia decided
Federal Election Commission v. Christian Coalition, 52 F. Supp.2d 45 (D. D.C.
1999). That decision held that corporate
expenditures for coordinated issue ads were subject to the contribution prohibitions of 2
U.S.C. section 441b.[21] Id.
Because this single district court decision seems to have contributed to a
re-evaluation of the Commissions previously expressed appreciation for and
insistence upon definite content standards, I will address this decision and related
precedent at some length.[22]
III.
B.
In MCFL the
Supreme Court had held that issue advocacy by corporations and unions does not constitute
an expenditure pursuant to the Act. 479
U.S. at 249. Thus, corporate and union
communications lacking express advocacy are not only not independent
expenditures[23]
under Section 441bthey are not expenditures at all. Nevertheless, the Christian Coalition court
concluded that whether or not corporate or union activity is prohibited or protected turns
upon whether the activity is in connection with an election, and not whether
the activity is an expenditure, under the Act because, [t]he real issue
is whether an expenditure is authorized by a campaign or
coordinated with the campaign. 52
F. Supp.2d at 87-88. The Christian
Coalition court went on to argue that Buckley, in its treatment of
coordinated expenditures as in-kind contributions, left undiscussed the First Amendment
concerns that arise with respect to expressive coordinated expenditures.
It can only be surmised that the Buckley majority purposely left this issue
for another case.[24] 52 F. Supp.2d at 85.
In addressing the
issue, the Christian Coalition court next recognized a need to differentiate
between expenditures on non-communicative materials, such as hamburgers or travel
expenses for campaign staff, which, like direct contributions to the candidate, do
not communicate the underlying basis of support, and expenditures in which the
spender is responsible for a substantial portion of the speech. Id. at 85, n.
45. The latter, which the court termed
expressive coordinated expenditures, are speech-laden or communicative, and
therefore different from other non-communicative in-kind contributions. Id.
Ultimately, however, the court concluded that coordinated issue advocacy could be
regulated, believing that it is the fact of coordination that is significant,
not the character of the underlying item that is coordinated. The court seemed to conclude that the lesson of Buckley
is that it is the independence of the speech, rather than its communicative value, that
determines its level of constitutional protection. In
other words, the court focused only on the corruption side of the coin, but not on the
First Amendment side. Thus, the court found
that independent speech is deserving of clear content standards, but where independence
fadesor at least a complainant alleges it has fadedspeech may be extensively
investigated regardless of its content and without regard for whether that speech
constitutes speech of the spender. See id.
at 87, n. 50.
The district judge
in Christian Coalition reasoned that Buckley specifically read an express
advocacy standard only into the statutory provisions regarding independent
expenditures relative to a clearly identified candidate and for the
purpose of influencing any election for Federal office. 52 F. Supp.2d at 87, n.50. Therefore, the court concluded, for all other
parts of the FECA, the Buckley Court must have used the term
expenditure advisedly, leaving intact the normal, broad meaning Congress had
given it. Id. But what normal, broad meaning had
Congress given the definition of expenditure?
Websters Dictionary defines expenditure as the act of
expending; a spending or using up of money, time, etc.; disbursement. Websters
New Twentieth Century Dictionary of the English Language, p. 644, 2d ed., 1977. Clearly the Act did not intend, nor would it be
constitutional, to prohibit all expenditures or contributions by a person in excess of
$1000, at least not in the broad, everyday meaning of the terms. Thus Congress had limited the scope of both the
terms expenditure and contribution to, [a]nything of value
for the
purpose of influencing any election for Federal office. 2 U.S.C. §§ 431(9)(A)(i) and 431(8)(A)(i) (emphasis added).
The Buckley Court, however, found that the phrase for the purpose of
influencing was still insufficiently precise to overcome concerns of vagueness and
overbreadth,[25]
and so narrowed it to cover only express advocacy. 424
U.S. at 79. If, as the Christian Coalition
court maintained, the Buckley Court defined that critical phrase only with
regard to independent expenditures, then
that phrase must still be imbued with some semblance of meaning before deciding which
coordinated disbursements are regulable expenditures, and therefore
contributions subject to the Act.
When a group engages in public discussion of political issues and coordinates its
activity with a candidate or committee, the critical phrase that turns the speech into
prohibited or limited activity is that it is speech for the purpose of influencing
an election. The court in Christian
Coalition seemed to assume that because the Supreme Court did not specifically define
the phrase as being limited to express advocacy in the context of coordinated
expenditures, it must have decided that groups that are alleged to have engaged in
coordinated speaking are not faced with the same concerns of vagueness and overbreadth. In fact, the Supreme Court has simply never
specifically answered the question.[26]
There is no
normal, accepted meaning of the phrase, for the purpose of influencing, and
Congress has not provided one. An
unconstitutionally overbroad statute may not be enforced at all until an
acceptable construction has been obtained. McGautha
v. California, 402 U.S. 183, 259 (1971), rehg. denied, 406 U.S. 978
(1972). Either the Commission or the courts must give the phrase for the purpose of
influencing some prospective, content-based meaning. [27]
IV.
The approach to coordinated expenditures adopted by Commissioners Thomas and
McDonald would relieve the Commission from any need to clearly define which speech is
for the purpose of influencing elections until after an extensive
investigation. They would have this
determination made by the Commission on a case-by-case basis after an investigation, which
would be, in effect, a search for evidence of the respondents true intent based upon
a totality of the circumstances. These
Commissioners believe a complete investigation in this case, for example, could have shown
that the the Coalitions communications were undertaken for the purpose of
influencing federal elections because the Coalition aired ads in the weeks
before the election; dropped direct mail ten days before the election;
and took credit for the reelection of many members of Congress. Thomas/McDonald Statement, at 12, n. 6, (internal
citations omitted). Additionally, they would find that [t]here
is no indication that the Coalition was formed for any purpose other than building
public support for certain candidates [and] nothing suggesting that the Coalition engaged
in
issue discussion outside the context of elections. Thomas/McDonald Statement at 15. The capstone for the Commissioners is a quote from
the Coalition itself: Our ultimate objective is to return a pro-business, fiscally
responsible majority for the 105th Congress. Thomas/McDonald Statement at
16 (emphasis omitted), quoting The Washington Post, August 8, 1996.[28]
These criteria offer no prospective guidance and contribute little if anything to
overcoming the vagueness problem. Because, as
the Supreme Court noted in Buckley, campaigns themselves generate issues of
public interest, 424 U.S. at 42, and because public interest in issues is often
highest close to an election, the logical time to engage in issue advocacy is close to an
election.[29] Similarly, groups will ultimately hope that if
politicians do not adopt their positions on issues, the voters will turn against them. Surely, we cannot regulate issue ads simply
because they will affect what issues and stances voters think are important. That does not make their conduct for the
purpose of influencing a federal election as the meaning of that crucial phrase has
been defined to avoid vagueness problems in the context of independent expenditures. See Federal Election Commission v. GOPAC,
917 F. Supp. 851 (D. D.C.) (1996). Thus the
type of criteria on which Commissioners Thomas and McDonald would rely fails, even after
the fact, to provide any meaningful distinctions that would not chill constitutionally
protected speech.
Equally important,
[n]o matter what facts [the Commission] finds through [an] investigation, the
requisite jurisdiction for the investigation itself must stand or fall on the purely legal
claim
. Federal Election Commission v. Machinists Non-Partisan
Political League, 655 F.2d 380, 390 (D.C. Cir. 1981) (hereinafter Machinists). In Machinists, the Circuit Court of Appeals
for the District of Columbia had to determine whether to enforce a Commission subpoena
against a draft committee where it was unclear whether the Commission had
statutory authority to regulate draft committees at all.
Id. The Court stated that any
alleged compelling interests the Commission may assert in seeking information, can be
compelling and granted effect if the Commission first has authority to regulate a
particular type of speech or activity. Id. But the Court held that the highly sensitive
character of the information sought simply makes it all the more important that the court
be convinced that jurisdiction exists. Id. at 389.
In the current
MUR, the purely legal claim is that coordinated issue advocacy is for the purpose of
influencing elections and so subject to regulation under the FECA. In deciding the question of Commission
jurisdiction, the Machinists Court warns us that [i]n this delicate first
amendment area, there is no imperative to stretch the statutory language, or read into it
oblique references of Congressional intent
. Rather, [a]chieving a
reasonable, constitutionally sound conclusion in this case requires just the opposite. It is our duty in the interpretation of
federal statutes to reach a conclusion which will avoid serious doubt of their
constitutionality. Id. at 394, quoting Richmond v. United States,
275 U.S. 331 (1928).
Certainly we, as
Commissioners, should equally avoid interpretations of the statute that raise
constitutional questions, at least absent a clear expression of intent from Congress. We are obliged to be certain we are acting within
the confines of the FECA and the Constitution. We
cannot use ambiguities to expand our regulatory authority.
Even if Commissioners do not believe that the Buckley Court limited the
phrase for the purpose of influencing to express advocacy when applied to
coordinated communications, they must concede that our guidance in this area is at a
minimum. To avoid serious constitutional
concerns, we should adopt an objective, bright line express advocacy standard as a
predicate to investigating allegedly coordinated issue discussion.
Indeed, the D.C.
Circuit has also admonished this agency to use clear, bright line standards, not only to
address constitutional concerns, but for more mundane, practical reasons as well. In Orloski v. F.E.C., 795 F.2d 156, 165
(D.C. Cir. 1986), the Court of Appeals wrote that, [a]dministrative exigencies
mandate that the FEC adopt an objective, bright-line test for distinguishing between
permissible and impermissible corporate donations.
Certainly this would apply to permissible and impermissible non-corporate donations
as well. The Orloski court went on to
add that, an objective test is required to coordinate the liabilities of donors and
donees. The bright-line test also is necessary to enable donees and donors to easily
conform their conduct to the law and to enable the FEC to take the rapid, decisive
enforcement action that is called for in the highly-charged political arena. Id. Each of these concerns apply in the context
of coordinated issue advocacyas the naming of over 60 respondents and the length of
the investigation in this MUR show, without an objective content standard neither donees
nor donors can easily conform their conduct to the law, and the FEC cannot
take rapid, decisive enforcement action.
And, of course, Orloski also warned of the need for a bright line to avoid a
chilling effect on protected speech: A subjective test based upon the totality of
the circumstances [such as that favored by Commissioners Thomas and McDonald in this MUR]
would inevitably curtail permissible conduct. Id.
In fact, Orloski
warned of other practical problems with a subjective test, many of which are on
exhibit in this case. Wrote the court:
[A subjective test] would also unduly burden the FEC with
requests for advisory opinions
and with complaints by disgruntled opponents who
could take advantage of a totality of the circumstances test to harass the sponsoring
candidate and his supporters. It would
further burden the agency by forcing it to direct its limited resources toward conducting
a full-scale, detailed inquiry into almost every complaint, even those involving the most
mundane allegations. It would also
considerably delay enforcement action. Rarely
could the FEC dismiss a complaint without soliciting a response because the FEC would need
to know all the facts bearing on motive before making its "reason to believe"
determination.
Id. at 165. These considerations, and in particular the
chilling effect on speech of this uncertainty, argue for an objective, express advocacy
test over the vague, post hoc, subjective test favored by Commissioners Thomas and
McDonald.
Commissioner Sandstrom, in his turn, voices a concern for vagueness and
overbreadth, but argues that the express advocacy test is a subjective,
content-based test about which reasonable minds can on occasion reach different
results, and for that reason, ought to be applied only where more objective
criteria are unavailable. Sandstrom Statement at 6. Commissioner
Sandstrom then argues that the objective criteria should be whether the ads were tested
for their effect on voters candidate preferences.
Based on this, he voted against the General Counsels recommendation to take
no further action in this case.
First,
Commissioner Sandstrom errs in thinking that the express advocacy test is subjective. A subjective test depends on the mental impression
of the respondent at the time his communications were made.
An objective test relies on independently verifiable facts, such as whether or not
a communication contains express words of advocacy of election or defeat. While it is true that the inexactness of language
means that reasonable minds can sometimes reach differing results on whether or not
certain words are express words of advocacy of election or defeat,[30]
in the overwhelming majority of cases the express advocacy standard is very easy to apply. The occasional disagreement does not mean that the
express advocacy test is subjective, that it fails to provide notice to the
regulated community, or that it fails to provide courts a standard of reviewing the
actions of legislatures, regulatory commissions, prosecutors, and inferior courts. By an objective test, it is not meant
that every adjudicator will reach the same result in every case, but rather that the test
will not rely on the subjective motives of the speaker.
Commissioner Sandstroms proposed objective criteria whether or not the
ad was tested for effect on voter candidate preferences is, like the express
advocacy test, objective in that it does not rely on intent, but is, like the express
advocacy test, subject to disagreement as to whether it has been met.[31]
More important,
Commissioner Sandstroms proposed standard provides no guidance to a group that had
not so tested its ads. That is, the presence
of such testing might quickly allow the Commission to find a purpose to influence a
federal election, but its absence would not allow the respondent to quickly demonstrate no
such purpose. (I do not think that
Commissioner Sandstrom means to propose that only issue ads that are tested for
effect on voters candidate preferences would be subject to regulation). Nor would the Commission be expected to routinely
accept a respondents denial of such testing without an investigation. Respondents would therefore continue to be subject
to extensive investigations on the basis of allegations filed by their political
adversaries. Thus, the chilling effects on
speech, not to mention the other problems outlined in Orloski, would still be
present. Furthermore, groups engage in issue
advocacy in the ultimate hope of changing government policy. One way to assure that issue ads will be effective
is to test them on voters to see if they are likely to encourage voters to put the desired
pressure on legislators and candidates to adopt the favored positions. The right to engage in political issues discussion
would lose much of its meaning if groups and individuals were limited to communications
that were not effective in mobilizing voters.
The express
advocacy test is an instrument of law designed to further constitutional aims by limiting
actions of legislatures and regulatory bodies that would chill protected political speech
through their overbreadth and vagueness. The
existence of express advocacy is a threshold requirement for regulating the communicative
expenditures of unions, corporations, groups or individuals. No matter the degree of dissatisfaction with the
results the test yields, we are not permitted, nor would it be wise, to jettison the
express advocacy test simply because we might believe in any given case that more
objective criteria are available.[32]
It is true that
the express advocacy test often yields results with which some individuals are unhappy. Many observers fear that coordinated issue
advocacy has the potential to corrupt candidates and officeholders. The Christian Coalition court, for example,
warned that were the express advocacy standard imported into section
441bs contribution prohibition, it would open the door to unrestricted
corporate or union underwriting of numerous campaign-related communications that do not
expressly advocate a candidates election or defeat. 52 F. Supp.2d at 88. This would, feared the court, present real
dangers to the integrity of the electoral process.
Id. at 92. Of course, all of
this is nothing more than the district court saying that its concern about quid pro quo
corruption overrides the vagueness and overbreadth problems inherent in regulating issue
advocacy. The Supreme Court faced the same
issues in Buckley and reached the opposite conclusion, recognizing that issue
advocacy would be used to influence campaigns: 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 candidates
campaign. 424 U.S. at 45. Regulating
coordinated issue advocacy, no matter how much it may or not benefit a campaign, plunges
the discussion of issues back into a morass of regulation and resuscitates the concerns of
vagueness and overbreadth the Court addressed in Buckley. A content standard is needed to alleviate this
problem, but at this time our coordination regulations possess no content standard beyond
the vague statutory language that expenditures be made for the purpose of influencing a
federal election.[33] This is effectively no content standard at all, as
the Buckley Court held in discussing the disclosure provisions of the Act, and as
another Supreme Court case, cited extensively in Buckley, makes clear.
In Thomas v. Collins, 323 U.S. 516 (1945),
Thomas, a national union leader, was accused of violating a Texas statute requiring
all labor union organizers operating in ... Texas ... to file [for an
organizers card] with the Secretary of State before soliciting any members for his
organization. Id. at 519, n. 1. The statute required organizers to carry the card
whenever soliciting members, and to exhibit the same when requested to do so
by prospective members. The statute was
invalidated because speakers would not know in what ways they could speak about the labor
movement, or about labor issues, without carrying a card.
In short, the statute was invalidated because it lacked a definite content
standard.
The Court suggested that had the statute included a precise content standard,
equivalent to the express advocacy test later adopted in Buckley, the regulation
could have been valid under the States police power because, [a] speaker in
such circumstances could avoid the words solicit, invite,[or]
join. Id. at 534. However,
[w]ithout such a limitation,
the statute forbids any language which conveys, or reasonably could be found to convey,
the meaning of invitation. How one might
laud unionism as the State and State Court concede Thomas was free to do, yet
in these circumstances not imply an invitation, is hard to conceive.
In short, the
supposedly clear-cut distinction between discussion, laudation, general advocacy, and
solicitation, puts the speaker in these circumstances wholly at the mercy of his hearers.
... Such a distinction offers no security for free discussion.
Id. at 535.
The Court made the point most
relevant to the problem posed by our current coordination regulations:
The vice [in a statute
prohibiting the issuing of invitations without an organizers card] is not merely
that invitation ... is speech. It is also
that its prohibition forbids or restrains discussion which is not or may not be
invitation. The sharp line cannot be drawn
surely or securely.
Id. at 535-36 (emphasis
added). Similarly, the vice in
the coordination regulations is not that they regulate ads that a candidate may authorize
or request. The vice of the regulations is
that unless they are limited to phrases of a particular kind, speakers who want to discuss
more generic matters will not know whether they will be investigated under the
regulations. A speaker seeking to discuss
issues without risking investigation can avoid words such as vote for,
elect, vote against, or defeat. But absent a content standard, our regulations
provide no guidance as to which types of phrases will be deemed to influence the
outcomes of elections, and our regulations will limit or chill much speech that is
not or may not be for the purpose of influencing a federal election.
Nor can the lack of a content
standard can be effectively offset through a restrictive test for coordination. While other considerations lead me to support a
conduct test for coordination similar to that enunciated in Christian Coalition and since incorporated into
our regulations at 11 C.F.R. § 100.23, the truth is that such a restrictive test for
proving coordination can, absent a content standard, actually make investigations more
intrusive and chilling of speech. The reason
is because the more difficult evidentiary burden the Commission faces to prove
coordination requires a more intrusive investigation to gather facts that are usually in
control of the respondent. Thus, while the
coordination rule of Christian Coalition solves the notice problem of the
Commissions old insider trading standard, it does not address the
fundamental vagueness problem. The
objectionable quality of vagueness and overbreadth does not depend [just] upon [the]
absence of fair notice to a[n] accused
but [more importantly] upon the danger of
tolerating, in the area of First Amendment freedoms, the existence of a
statute
susceptible of sweeping and improper application.
NAACP v. Button, 371 U.S. 415, 432-433 (1963). A content standard provides advance notice to
actors of what kind of speech the Commission may investigate, and reduces the risk of
arbitrary, discriminatory, or capricious enforcement far more effectively than a purely
conduct based standard.
Absent a content standard, it
does not appreciably warm the environment for speech to say that the standard for actually
proving and punishing coordination must be restrictive, as the court did in Christian
Coalition. 52 F. Supp.2d at 88. This is because a restrictive conduct standard
does nothing to alleviate the ease with which allegations may be made and intrusive,
expensive investigations launched. The
Supreme Court in Thomas v. Collins, assessing the chilling
effect of the Texas statute upon speech, did not discuss the defendants likelihood
of success at trial, or the difficulty that the State would have in proving whether the
defendant violated the organizer-card ordinance, or the elements involved in that proof. The mere threat of prosecution was sufficient to
chill speech and make the statute unconstitutional. (The
threat of ... arrest ... hung over every word. Id. at 534.) Because the threat of prosecution (or
investigation) can itself chill speech, see Virginia v. American Booksellers
Assn.,
484 U.S. 383, 392-93 (1998), a tough conduct standard does not eliminate the need for a
clear content standard. A precise content
standard along with the new conduct standards outlined in 11 CFR § 110.23 would work as
bookends in enforcing the Act while removing an unconstitutional chill from protected
speech and associational activities.
V.
Investigations into
allegations of coordination will often involve demands for access to an
organizations detailed legislative and political plans, including intrusion into the
most sensitive internal political discussions. See generally, AFL-CIO, et al. v.
FEC, Civ. Action No. 01-1522 (GK), Dist. Ct., District of Columbia. The express-advocacy content standard ensures that
investigations into allegations of coordination are only visited upon those groups,
corporations or unions who first cross a bright, content line.
The dangers to the First
Amendment posed by such broad government investigations of political activity have been
recognized time and again by the federal courts. See
e.g., F.E.C. v. Larouche Campaign, 817 F.2d 233, 234 (2d Cir.
1987)(recognizing that the Commissions investigative authority should be constrained
or clearly delineated due to the sensitive nature of the activities the agency regulates,
and holding that where a case implicates First Amendment concerns, the usual
deference to the administrative agency is not appropriate and protection of the
constitutional liberties of the target of the subpoena calls for a more exacting scrutiny
of the justification offered by the agency.) In
Buckley,
the Supreme Court recognized that compelled disclosure [of political activities], in
itself, can seriously infringe on privacy of associations and belief guaranteed by the
First Amendment. 424 U.S. at 64. Justice
Frankfurter made the same point over forty years ago: It is particularly important
that the exercise of the power of compulsory process be carefully circumscribed when the
investigatory process tends to impinge upon such highly sensitive areas as freedom of
speech or press, freedom of association, and freedom of communication of ideas. Sweezy v. New Hampshire, 354 U.S. 234, 235
(1957) (Frankfurter, J., concurring). Investigations
into such areas of constitutional sensitivity ought to be triggered only where respondents
can know that they have crossed a bright line.[34]
The suggestion that a bright
line can be found by the fact of communicating with a candidatein other words, that
a speaker can find a safeharbor by not communicating at all with a candidate in the two,
four or six-year period between elections, is not realistic.[35] Indeed, one reason for our passing the new
coordination regulation was the recognition that our old enforcement standard,
presumptively finding coordination based on any contact between the speaker and the
candidate, was unrealistic. For example, in
seeking to prove coordination between the Christian Coalition and various Republican
candidates, the Commissions evidence included the fact that public officials
addressed meetings of the organization. See
Christian Coalition, 52 F. Supp.2d at 68, 71, 76.
Public officials have a legitimate need to communicate with their constituents,
these constituents have a right to listen to their elected officials, and nowhere in
the Act did Congress expressly limit an incumbents right to communicate with his
constituency. Orloski v. Federal
Election Commission, 795 F.2d 156, 163 (D.C. Cir. 1986). Groups and candidates talk all the time, and to
force groups to choose between talking to candidates or losing their safeharbor is likely
to be as chilling on the First Amendment rights to speak and to petition the government as
the conduct standard the Commission just rejected.
Issue discussion
ought not, and constitutionally cannot, be regulated merely because an issue ad may be of
benefit to the candidate or his campaign. Issue
discussion will almost always, at some point, benefit some campaign, as the Buckley
Court understood. The purpose of the express
advocacy test is not to neatly separate those communications that are intended to
influence a campaign from those that are not, but to protect the rights of all citizens to
engage in protected speech. In this respect,
the test is similar to many other prophylactic tests found in the law. For example, in Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court recognized that to
permit a full opportunity to exercise the privilege against self-incrimination, the
accused must be adequately and effectively apprised of his rights and the exercise of
those rights must be fully honored. Miranda, at 467.[36] The warnings that law enforcement officials have
been required to give to suspects ever since are not a sifting screen to divine the
subjective intent of the suspect; not one tool among many for determining whether his
confession was voluntary. Likewise, the
express advocacy test is not a sifting screen to divine the subjective intent of a
respondent, to determine whether in his mind the speech he engaged in was for the purpose
of influencing an election. Rather, both the Miranda
warnings and the express advocacy test are objectively ascertainable threshold
requirements promulgated by Courts to protect the constitutional rights of citizens. Neither test is disposable, even though there may
be other evidence that a confession was voluntary, or that a respondents speech was
for the purpose of influencing an election.
As stated by the Court in Miranda, the privilege is so fundamental to
our system of constitutional rule and the expedient of giving adequate warning as to the
availability of the privilege so simple, we will not pause to inquire in individual cases
whether the defendant was aware of his rights without a warning being given. Miranda at 468. The First Amendment is no less fundamental,[37]
and the expedient of applying the express advocacy test so simple, that we may not and
ought not pause to inquire in individual cases whether speech can be for the
purpose of influencing an election without first finding express advocacy.[38]
Campaign finance
laws and regulations have, over time, become weapons in the arsenals of candidates and
party committees, and we should not quickly minimize the far-reaching aspects of these
regulations. In 2000 the Congressional Committee Chairman of one major political
party went so far as to sue his counterpart under the RICO statute.[39] If our
coordination regulations proceed without an adequate content standard, it will take the
political elite about three minutes to deduce that nearly all allegations of coordination
will be followed by an FEC investigation, to which the respondent can offer no affirmative
defense that will quickly terminate the investigation. Given that groups frequently have
contacts with officeholder/candidates, credible allegations of coordination will be easy
to make. If the complaint is reasonably well crafted,[40] the
Commission will have no choice but to find reason to believe that a violation
has occurred. This is low-hanging fruit for any party, candidate, person or group
seeking to silence and harass opposing voices in an election cycle.
Whether express advocacy is present in any written or broadcast message, however,
is a legal question susceptible of a quick preliminary determination by the Commission. It therefore acts as an affirmative defense the
Commission can accept or reject in the initial stages of the MUR. Absent such a test, a respondents
preliminary denial of coordination, even when backed by signed affidavits, will never
amount to anything more than a self-serving factual (not legal) representation. If in the future the Commission adopts an
incorrect content standard, or effectively no content standard, there will be no
affirmative defense that could save an advocate from a protracted investigation. The express advocacy bright line serves as that
affirmative defense. If the Commission
abandons that bright line, any group or individual which seeks to both engage in issue
discussion and has even a passing contact with elected officials may be subject to
allegations that will trigger the type of massive investigation, and corresponding costs,
seen in this MUR. Thus it will be among the
most aggressive moves the Commission has taken towards chilling debate in the United
States.
The expensive, intrusive, lengthy investigation of MUR 4624, like the similar
four-year investigation in MUR 4291, would have been readily avoided by the simple
application of an express advocacy content standard.
Adopting this standard is, in my view, required by both the statute and the
Constitution. But even if not required, it
is certainly a permissible standard under the statute, and offers many benefits. It provides clear notice to the community; it
should result in fewer Advisory Opinion requests than the mere conduct standard; it will
result in fewer expansive investigations which eat up Commission resources; it will reduce
the role of litigation in campaigns; and most importantly, it avoids any concerns about
constitutionality, and will not have the chilling effect on speech of an approach without
a clear content standard.
Thus I would have ended this MUR on much simpler grounds, at a much earlier date,
by finding that the Coalitions spending for issue advocacy, whether or not otherwise
coordinated, was as a matter of law not for the purpose of influencing an election and not
subject to regulation under the FECA.
___________________________________ ________________
Bradley A. Smith, Commissioner
Date
[1]
See Statement of Reasons of Commissioner Scott E. Thomas and Chairman Danny L.
McDonald, (hereinafter Thomas/McDonald Statement); Statement for the Record of
Commissioner Karl J. Sandstrom (hereinafter Sandstrom Statement).
[2]
The term express advocacy stems from the Supreme Courts decision in Buckley
v. Valeo, 424 U.S. 1 (1976). In that
case, the court limited the reach of sections 608(e)(1) and 434(e) of the FECA to those
communications that in express terms advocate the election or defeat of a clearly
identified candidate, id. at 44, then held that a cap
on section 608(e)(1) expenditures, even as narrowed, was unconstitutional. As examples of express advocacy, the Court offered
such terms as vote for, elect, support,
cast your ballot for, Smith for Congress, vote
against, defeat, reject. Buckley at 44, n.52. This limitation on the reach of regulation has
been reaffirmed by the Supreme Court, see Federal Election Commission v.
Massachusetts Citizens for Life, 479 U.S. 238 (1986) (hereinafter MCFL), and countless lower
courts, see infra note 27. The question in this case is
whether or not this limitation applies to communications that are coordinated with the
campaign.
[3]
See Thomas/McDonald Statement at 2-4.
[4]
I joined the Commission on June 26, 2000, at which time the case had been going on for
over three years. Two weeks later, on July
11, 2000, I joined in a 5-0 Commission vote in favor of an additional round of discovery. I now recognize the error of that vote, and, for
the reasons stated below, will no longer lend my vote to any matter that prolongs the
legal agony of citizens and groups whose communications do not contain express advocacy.
[5]
Several of the Respondents in this MUR have also expressed their belief that the General
Counsels Report of April 20, 2001, while ultimately recommending that no action be
taken against them, unfairly maligns their actions and insinuates illegal conduct. See Letter of Jan Witold Baran to
Commission, June 13, 2001; Letter of Benjamin L. Ginsberg, et al. to Acting General
Counsel Lois G. Lerner, July 5, 2001. I
share the concerns of these respondents that reports to the Commission ought not be used
to impugn the activities and motives of respondents when the evidence does not support
continuing with the case or when no violation is found, and I believe that this type of
tone will further discourage individuals and groups from participating in political
activity in the future.
[6]
The phrase corruption or appearance of corruption comes from Buckley v.
Valeo, 424 U.S. 1, 25 (1976), and serves as the constitutionally valid rationale for
regulating political speech in the form of campaign contributions and expenditures.
Although this case involves the DNC complaining about Republican candidates and
organizations and their allies, it goes without saying that Republicans file charges
against Democrats.
[7]
Commissioners Thomas and McDonald, who voted against adoption of the regulations, complain
that the regulations are unduly strict. Thomas/McDonald
Statement at 4-14. For reasons I state below,
I believe they comply with the Act and that our old practices exceeded the scope of both
the Act and the Constitution. Commissioners
Thomas and McDonald also argue that the Commission has thwarted the will of the Senate,
Thomas/McDonald Statement at 17, by implementing these regulations in the wake of the
Senates passage of S.27, the McCain-Feingold bill.
Section 214 of S. 27 would effectively repeal the coordination rule of 11 C.F.R.
100.23. We are not, of course, entrusted
with implementing the will of the Senate, at least not until such time as the House of
Representatives manifests the same will and the President has either signed
the bill, allowed it to become law without his signature, or had his veto over-ridden by
the necessary two-thirds majority of each house. See generally, INS v.
Chadha, 462 U.S. 919 (1983). I note that
although the Senate received the proposed final rule on December 7, 2000, it did not
disapprove the rule by resolution within thirty legislative days of its
receipt, as it was free to do pursuant to 2 U.S.C. § 438(d).
[8]
As terms of art, independent expenditures expressly advocate the election or
defeat of a candidate. Though not limited in
amount, they are subject to other provisions of the Act.
Issue advocacy, on the other hand, is political discussion that does
not contain explicit words of advocacy of election or defeat, and so has been protected by
the Supreme Court from regulation. See
Buckley, 424 U.S. at 44, n.52; MCFL, 479 U.S. at 249. The issue here is whether an issue ad, if
coordinated with a candidate, becomes subject to the Act.
[9]
In the Explanation and Justification of the final rule, the Commission claims that it is
addressing the constitutional concerns raised in Buckley by creating a
safeharbor for issue discussion. See
Notice #2000-21, Final Rule on General Public Political Communications Coordinated with
Candidates and Party Committees; Independent Expenditures, 65 Fed. Reg. 76138, 76141 (Dec.
7, 2000). This statement is true but applies
only with respect to 11 CFR section 100.23(d), which makes clear that a candidates
response to an inquiry regarding her position on issues will not suffice to establish
coordination. Id. Otherwise, the Commission has not provided an
adequate safeharbor for issue discussion, for it has not, as of yet, determined the
content standard necessary for regulating coordinated communications. See id. at 76141 (The
Commission is not adopting any content standard as part of these rules at this time.)(emphasis
added). The Commissions conscious
decision not to address a content standard should not be read as a presumption that the
Commission has made a final decision against requiring a content standard, however, for as
the Explanation & Justification also explains, the Commission may revisit the
issue of a content standard for all coordinated communications when it considers
candidate-party coordination. 65 Fed
Reg. at 76141.
[10] 2 U.S.C. § 441b(b)(2)
provides as follows:
For the purposes of this
section
the term contribution or expenditure shall include any direct
or indirect payment, distribution, loan, advance, deposit, or gift of money or any other
services, or anything of value (except a loan of money by a national or State bank made in
accordance with the applicable banking laws and regulations in the ordinary course of
business) to any candidate, campaign committee, or political party or organization, in
connection with any election to any of the offices referred to in this section.
[11] Additionally, section
431(8)(A)(i) of the Act limits the definition of contribution to any gift,
etc. made
for the purpose of influencing a federal election. 2 U.S.C. § 431(8)(A)(i). This is the same statutory phrase as is used in
the definition of expenditure, 2 U.S.C. § 431(9)(A)(i), and which was
construed by the Buckley Court to require a showing of express advocacy. The Buckley Court referred to 2 U.S.C. §
431(8)(A)(i) and 2 U.S.C. § 431(9)(A)(i) as parallel provisions. Buckley at 77.
[12]
See Pub. L. No. 94-283, 90
Stat. 497, May 11, 1976 (amending 2 U.S.C. § 441d).
2 U.S.C. § 441d(a)(2) provides in pertinent part:
Whenever any person makes an
expenditure for the purpose of financing communications expressly advocating the election
or defeat of a clearly identified candidate
such communication
(2) if paid
for by other persons but authorized by a candidate, an authorized political committee of a
candidate, or its agents, shall clearly state that the communication is paid for by such
other persons and authorized by such authorized political committee.
Prior to Buckley, the
Second Circuit had also held that issue advocacy could not be subject to the disclosure
provisions of the FECA, United States v. National Committee for Impeachment, 469
U.S. 1135 (2d Cir. 1972).
[13] See S. 27, Sec. 214,
107th Congress, 1st Session (commonly known as the McCain-Feingold bill)
(amending the Acts definition of contribution to include any
coordinated expenditure or other disbursement made by any person in connection with a
candidates campaign, regardless of whether the expenditure or disbursement is a
communication that contains express advocacy.)
[14] The Commission also made
reason to believe findings under section 441d for failure to make disclaimers. As section 441d, by its express terms, only
applies to communications expressly advocating election or defeat, this charge
could have been easily dismissed as well.
[15] See Buckley at 79. Our new coordination regulations deal specifically
with groups and individuals, exempting party committees and authorized committees. 65 Fed
Reg. 76141-76142.
[16] See also Federal
Election Commission v. Survival Education Fund, 65 F.3d 285, 294-95 (2d
Cir. 1995) (holding that the phrase contributions
earmarked for political
purposes must, for reasons of vagueness, also be limited to contributions earmarked
for communications that expressly advocate the election or defeat of candidates for
office).
[17] Unlike some of my colleagues,
I do not interpret that oath to mean that we can fulfill our constitutional obligations
simply by ignoring constitutional considerations until and unless we are bound by judicial
ruling. Rather, as representatives of a
co-equal branch of government, our obligation requires us to consider the constitutional
implications of our actions even when we have not been bound by judicial decisions.
[18] Everyone at this Commission
is well aware of a favorite saying of the practicing campaign finance law bar: The
process is the punishment.
[19] I did not join the Commission
until June of 2000.
[20] This appears to have been the
standard used by the Commission in deciding whether or not coordinated issue advocacy was
subject to the Act prior to adoption of 11 CFR § 100.23.
See Advisory Opinion 1985-14 [19761990 Transfer Binder] Fed. Elec.
Camp. Fin. Guide (CCH), ¶ 5819 at 11185.
[21] In doing so the district
court failed to address the impact of 2 U.S.C. § 431(8)(B)(vi) in light of the Supreme
Courts holding in MCFL, supra. See
ante pp.
4-5.
[22] I presume that the Christian
Coalition case was a factor in this change as all three Commissioners still on the
Commission reversed course on the need for clear content standards after that opinion. Another possibility is that these commissioners
believe that vagueness and overbreadth can be cured by a content standard somewhere
between the "electioneering message" standard they specifically rejected and the
express advocacy test they have so far not adopted, though to date no such standard has
been proposed.
[23] The district court stated
that corporations and unions can make independent expenditures that are
related to a federal election campaign so long as those expenditures are not for
communications that advocate the election or defeat of a clearly identified
candidate. Christian Coalition at 48 (emphasis in the
original). Because the term independent
expenditure is defined within the FECA as requiring express advocacy, see 2 U.S.C. § 431(17), and
section 441b prevents corporations and unions from making any FECA
expenditures, we know that the district court meant issue advocacy
by its use of the term independent expenditures in the above sentence.
[24] The Buckley Court
allowed contributions to be carved from First Amendment protection largely because
contribution limits involve [] little direct restraint on [ones] political
communication [and] does not in any way infringe on the contributors freedom to
discuss candidates and issues. Buckley at 21. Investigating issue advocates on the theory that
their communications may be coordinated with a candidate is a direct restraint on a
speakers freedom to discuss candidates and issues.
[25] There is no legislative
history to guide [the courts] in determining the scope of the critical phrase for
the purpose of influencing, Buckley, at 77, yet [i]t is the
ambiguity of this phrase that poses constitutional problems. Id.
[26] See ante at 13.
[27] In the context of FECA, the
courts have consistently used an express advocacy test to give meaning to the
Acts vague or overly broad provisions. See
e.g. Buckley v. Valeo, 424 U.S. 1 (1976); Massachusetts Citizens for Life, 479 U.S. 238 (1986); Maine
Right to Life v. FEC, 98 F.3d 1 (1st
Cir. 1996), cert. denied 118 S. Ct. 52 (1997); FEC
v. Christian Action Network, Inc., 92 F.3d 1178 (4th
Cir. 1996) (summarily affirming 894 F. Supp. 947 (W.D. Va.
1995)); Faucher v. FEC, 928 F.2d 468 (1st
Cir.), cert. denied, 502 U.S. 820 (1991); FEC
v. Central Long Island Tax Reform Immediately Comm., 616 F.2d 45 (2d Cir. 1980) (en
banc); Colorado
Republican Fed. Campaign Comm., 839 F. Supp. 1448 (D.
Co.), revd on other grounds, 59 F.3d 1015 (10th
Cir. 1995), vacated on other grounds, 116 S. Ct. 2309 (1996); Right
to Life of Michigan v. Miller, 23 F. Supp.2d 766 (W.D.
Mich. 1998); FEC v. National Org. for Women, 713 F. Supp. 428 (D. D.C.
1989); FEC v. American Fedn of State, County & Mun. Employees, 471 F. Supp. 315 (D. D.C.
1979). See also FEC v. National
Conservative Political Action Comm., 470 U.S. 480, 497 (1985)
(holding that the First Amendment prohibits limits on independent expenditures that
expressly advocate the election or defeat of a candidate, and noting in dicta [t]he
fact that candidates and elected officials may alter or reaffirm their own positions on
issues in response to political messages
can hardly be called corruption, for one
of the essential features of democracy is the presentation to the electorate of varying
points of view.); Clifton v. FEC, 114 F.3d 1309 (1st
Cir. 1997) (holding that the Commissions efforts to regulate issue
advocacy as contributions exceeded its powers under the FECA, and
stating, we do not take Congress to have authorized rules that sacrifice First
Amendment interests.)
[28] Commissioners Thomas and
McDonald also cite these facts for the proposition that the Coalition was a
political committee that must register under 2 U.S.C. § 433 and report its
activity under 2 U.S.C. § 434. Thomas/McDonald Statement at 15-17. The Act defines political committee as any
association
of persons
which receives contributions
or makes expenditures aggregating in
excess of $1,000 during a calendar year. 2
U.S.C. § 431(4)(A) (emphasis added). The
Buckley
Court cautioned that the broad statutory definition of political committee,
which turns on the terms contribution and expenditure and on the phrase for the
purpose of influencing any election had the potential for encompassing both
issue discussion and advocacy or a political result and thus might encroach upon
First Amendment freedoms. Buckley at 79. Therefore, to fulfill the purposes of the Act, the
term political committee need only encompass organizations that are under the
control of a candidate or the major purpose of which is the nomination or election of a
candidate. Id. While an organizations purpose may be
evidenced by its public statements of its purpose, see MCFL at 262, such an inquiry
is secondary to the requisite of finding expenditures or
contributions in excess of $1,000. So
[e]ven if the organizations major purpose is the election of a federal
candidate or candidates [, as Commissioners Thomas and McDonald insist the evidence would
conclude,] the organization does not become a political committee unless
or until it makes expenditures in cash or in kind. See Machinists at 392. The argument that major purpose alone
is enough to make a group a political committee or make disbursements into
expenditures as defined by the Act was specifically rejected in Federal
Election Commission v. GOPAC, 917 F. Supp. 851, 861-62 (1996)(As a matter of
law, the Commission
failed to demonstrate that GOPAC became a political committee
within the meaning of the Act by spending or receiving $1,000 or more and engaging
in partisan politics and electioneering.)(emphasis added).
[29] Furthermore, Congress is
often still in session within, for example, 60 days of an election, and engaged in more
than the usual number of floor votes while attempting to wrap up the session. See Bradley A. Smith, Soft Money, Hard
Realities: The Constitutional Prohibition on a Soft Money Ban, 24 J. Legis. 179, 192
n. 85 (1998); See also Mills v. Alabama,
384 U.S. 214 (1966)(striking down a limited ban on express advocacy close to an election).
[30] See e.g. Federal
Election Commission v. Furgatch, 807 F.2d 857 (9th
Cir. 1987), cert den. 484 U.S. 850 (1987); MUR 4922
(Suburban OHare Commission).
[31] For example, my standard for determining what
constitutes test[ing] an ads
influence on voters choice of federal candidate may differ from Commissioner
Sandstroms. Does it include, for
example, asking generically whether a voter would be more or less inclined to favor a
candidate who takes particular positions? Or
asking not if the ad would affect ones vote or even preference, but merely the
respondents opinion of the individual in question?
Or suppose that the ads are tested for voters using candidates in a Senate race,
but then run in a House race? I am sure many
more variations are available.
[32] It goes without saying that
there is no basis in the statute or judicial interpretations of the statute for
Commissioner Sandstroms proposal to define groups as political committees by
essentially redefining expenditure
and contribution to include ads tested for their effect on voter candidate
preferences. Commissioner Sandstrom is also
justifiably concerned that the rules be made clear.
Sandstrom Statement at 4-5. In
addition to being well grounded in judicial precedent, the express advocacy test has the
advantage of being clear, simple to understand for the inexperienced, easy to apply in the
overwhelming majority of cases, and familiar to regular participants in campaigns.
[33] Some have suggested
that the purpose of influencing be found in 'any ad featuring a candidate's
name or likeness.' But this is little
improvement, for reasons of overbreadth, over the 'relative to a candidate' standard the
Court rejected as vague in deciding Buckley. Limiting
the content standard to any ad containing a clearly-identified candidate is
unconstitutionally overbroad for as the Court observed in Buckley, [c]andidates,
especially incumbents, are intimately tied to public issues involving legislative
proposals and governmental actions. Not only
do candidates campaign on the basis of their positions on various public issues, but
campaigns themselves generate issues of public interest. 424 U.S. at 42.
[34] I do not suggest that the
Commission may make no inquiries at all until it is sure that express advocacy exists. The Commission could conduct a Reader's Digest inquiry, even to the point
of enforcing subpoenas, to be certain no express ads were run. See Reader's Digest Ass'n. v. FEC, 509 F.
Supp. 1210 (S.D.N.Y) (where factual questions existed regarding whether the Commission had
statutory authority to conduct a full investigation, the court adopted a two-step process
to govern its continuation; the first stage of the investigation would be solely for the
purpose of determining whether statutory authority existed). As a factual matter, complaints are normally
filed because someoneusually the speakers political opponenthas seen the
ads in question. The ads are described in or
attached to the complaint, so even a Readers Digest inquiry will be rare. When the ads are not shown by the complaint to be
issue ads, the respondent can typically attach the ads to the response, and if they do not
include express advocacy, the enforcement ends there at very low cost to both respondent
and Commission.
[35] Chairman McDonald and
Commissioner Thomas state that the Act and the Buckley Court required only a
"general understanding" to find coordination and presumably would state that
persons speaking with legislative officials or candidates in the 2, 4 or 6 years between
elections do so at their own risk. See
Thomas/McDonald Statement at 7. I disagree
with this conclusion, for the reasons stated in Clifton. See 114 F.3d 1309 at 1314. The district court in Christian Coalition also seemed not to appreciate
the First Amendment dilemma in this area, mischaracterizing the choice as one between
lobbying the campaign on issues but spending no money on the election
or remaining walled off from the campaign so that all campaign-related expenditures
are clearly independent. Christian Coalition, 52 F. Supp. 2d at 89, n. 53
(emphasis added). Approximately fifty percent
of all campaigns involve office holders who make up the
government, and with whom the speaker may wish to confer on legislative issues
pursuant to the First Amendment right to petition for a redress of grievances. U.S. CONST. amend. I.
[36] The Miranda warnings
were re-affirmed last year as a constitutionally based approach for determining the
admissibility of statements made during a custodial interrogation that could not be
overruled by statutory enactment. Dickerson
v. United States 530 U.S. 428 (2000).
[37] See e.g., Buckley
v. Valeo, 424 U.S. at 14 (Discussion of public issues and debate [is] integral
to the operation of the system of government established by our Constitution.)
[38] The law is full of blanket
rules, in addition to Miranda, that are adopted in order
to protect rights or to provide for increased accuracy or efficiency, even if in a
particular case the application of the rule does not seem to achieve its purpose. For example, statutes of limitations may prevent
an action even when evidence is not stale; the exclusionary rule often prevents evidence
from being used in trials though it is known to be probative; the parole evidence rule may
make a contract unenforceable though the evidence is clear that such a deal was made, to
name just a few.
[39] In 2000, DCCC Chairman,
Patrick Kennedy (D-R.I.) sued the NRCC and Tom DeLay (R-Tx.) under the RICO statute. See Juliet Eilperin, House Democrats Sue
DeLay; Action Accuses Whip of Extortion, Money Laundering in Fundraising, THE WASHINGTON POST, May 4, 2000, at A06.
[40] Commission policy has been to
treat complaints liberally. If the
complainant swears an affidavit (as he is essentially required to do in swearing out a
complaint, see 2 U.S.C. §437g(a)), the
Commission will nearly always be required to launch into a full investigation to fairly
decide whether the complainant or respondent has the better factual representation. Rarely could the FEC dismiss a complaint
because the FEC would need to know all the facts bearing on motive before making
its
determination. Orloski at 165.