FEC Seal











On September 22, 1999, Commissioners Sandstrom, Elliott, Mason and Wold voted to end the Federal Election Commission’s enforcement litigation against the Christian Coalition.  Federal Election Commission v. Christian Coalition, 52 F.Supp. 45 (D.D.C. 1999).  They voted not to appeal the adverse August 2, 1999 decision of the district court to the United States Court of Appeals for the District of Columbia Circuit.  As a result, this important case will not proceed through the normal appeal process.


We strongly disagree with our colleagues.  We believe the Commission should have appealed this case for a number of reasons.  First, the alleged violations of the Federal Election Campaign Act were massive and committed on a broad scale.  In its lawsuit, the Commission charged the Christian Coalition repeatedly spent its corporate treasury funds to influence federal elections in violation of the Federal Election Campaign Act.  Some of these corporate expenditures, to a reasonable person, expressly advocated the election or defeat of clearly identified candidates in direct violation of the Act’s prohibition on independent corporate campaign expenditures.  2 U.S.C. 441b. Other Christian Coalition expenditures were coordinated with specific federal candidates and, in one instance, with a national political party committee.  These coordinated expenditures constituted in-kind corporate campaign contributions thus also violating section 441b.


Because the record detailing these violations was so extensive and compelling, the Commission authorized filing a lawsuit in this matter.  The record evidence reveals the Christian Coalition’s leadership and its staff repeatedly cooperated and consulted about campaign strategy and activities with several different Republican candidates, their campaigns, and the National Republican Senatorial Committee.   In addition, the record details numerous instances where the Christian Coalition unambiguously advocated the election or defeat of specific clearly identified candidates.  These violations were not isolated.  They were repeated during the 1990, 1992 and 1994 congressional elections and the 1992 presidential election.


Congress specifically has directed that the Commission “shall. . . seek to obtain compliance with” the Federal Election Campaign Act.  2 U.S.C. 437c(b)(1)(emphasis added).  Reinforcing this directive, Congress further provided that the Commission alone “shall have exclusive jurisdiction with respect to the civil enforcement” of the Act.  Id.  Given the gravity of the violations at issue here, the repeated instances on which they occurred, and the amounts in violation, we believe the Commission should have appealed the district court’s decision in this matter.  By not doing so, the Commission has failed to carry out Congress’s explicit enforcement mandate.


We also believe the Commission should have appealed this decision to afford the courts an opportunity to settle, once and for all, the vital and significant issues raised in this litigation. The decision of a single district court cannot finally resolve these important issues.  Indeed, the decision of the district court in Christian Coalition is not binding precedent on any other federal court, even in the same district.  See, e.g., In re Korean Air Line Disaster, 829 F.2d 1171, 1176 (D.C.Cir. 1987)(“Binding precedent for all [circuits] is set only by the Supreme Court, and for the district courts within a circuit, only by the court of appeals for that circuit”), aff’d, 490 U.S. 122 (1989); Richardson v. Selsky, 5 F.3d 616, 623 (2d Cir. 1993); Fox v. Acadia State Bank, 937 F.2d 1516, 1570 (11th Cir. 1991); United States v. Articles of Drug (consisting of 203 Paper Bags), 818 F.2d 569, 572 (7th Cir. 1987).  In Christian Coalition, the district court itself appeared to recognize this fact when it virtually invited the Commission to file an interlocutory appeal on the matter to the United States Court of Appeals for the District of Columbia Circuit.  See 52 F.Supp.2d at 98 (“this court is of the opinion that this Order in relation to Counts I, II, and III involves controlling questions of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.  See 28 U.S.C. 1291(b)”) (emphasis added).


The failure of the four Commissioners to appeal the Christian Coalition case means we must continue to wait for Supreme Court guidance on several issues crucial not only to the Christian Coalition case, but also to the regulated community.  For example, what is “express advocacy?”  In the wake of Buckley v. Valeo, 424 U.S. 1 (1976), and FEC v. MCFL, 479 U.S. 238 (1986), the courts of appeals have been divided over whether a “magic words” test or a “read as a whole test,” see FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987), should determine express advocacy.  As the Seventh Circuit recently observed, however, the lower courts “give different answers not because they disagree about whether Buckley and Massachusetts Citizens for Life ‘apply’ but because these decisions do not give unambiguous answers to the myriad situations that arise.”  Wisconsin Right to Life v. Paradise, 138 F.3d 1183, 1186 (7th Cir. 1998)(emphasis added).  Indeed, the Seventh Circuit found the simplistic admonishment “Follow Buckley!” provides no effective guidance because such an instruction “would not dictate one outcome rather than another.”  Id.   Obviously a single district court judgment does nothing to settle this vexing issue.[1]


Similarly, what is “coordination?”  Under the Act, “expenditures made by any person in cooperation, consultation, or concert with, or at the request or suggestion of, a candidate, his authorized committee, or their agents, shall be considered to be a contribution to such candidate.”  2 U.S.C. 441a(a)(7)(B)(i).  Yet, the district court ignored this standard of coordination, created its own standard of coordination, and

applied it to a new concept known as “expressive coordinated expenditures.”  52  F.Supp. at 85.[2]  Under the district court’s approach, the Commission must show there had been “substantial discussion or negotiation” about a communication so the “candidate and spender emerge as partners or joint venturers.”  52 F.Supp. at 92.


Not only is the district court’s narrow and restrictive standard of coordination found nowhere in the Act and Commission Regulations, but also it runs directly contrary to Buckley where the Supreme Court considered independent expenditures as those made “totally independent of the candidate and his campaign.”  424 U.S. at 47 (emphasis added).  Likewise, the Supreme Court later indicated in Colorado Republican Federal Campaign Committee v. FEC, 518 U.S. 604, 614 (1996) that coordination would exist if there was a “general or particular understanding with a candidate.”  In view of its clear conflict with prior Supreme Court authority, the district court decision in Christian Coalition is plainly suspect and provides no definitive guidance on what constitutes coordination.


Until the important and recurring issues of what constitutes express advocacy and coordination have been decided by the Supreme Court, the uncertainty and conflict created by the lower courts will continue.  Our colleagues mislead themselves if they think these issues will be settled without future word from the Supreme Court.  The Christian Coalition case would have been the perfect vehicle for a definitive resolution of the express advocacy and coordination issues.  The fully developed factual record in this case would have presented these issues squarely before the Court.  See Rescue Army v. Municipal Court, 331 U.S. 549, 584 (1947)(Supreme Court has long recognized that important constitutional issues are best decided on the basis of factual records which present “the underlying constitutional issues in clean-cut and concrete form.”).


We are not certain why our colleagues decided to drop the Christian Coalition case and wrest resolution of these important issues away from the Article III courts.  We have no doubt that whatever regulatory standard the Commission develops, it will be subject to some future challenge and litigation.  Indeed, one member of the regulated community has reviewed our colleagues’ efforts at creating a regulatory definition of coordination based on Christian Coalition and already “predicted. . .that there would be negative comments on the new Commission proposal from business, labor and other groups.”  BNA, Money & Politics at 2 (December 3, 1999).   And, when this new regulation is found infirm—as it surely will be-- as either too narrow or too broad by some lower federal court in the country, the Commission will face yet another opportunity to appeal the matter in the courts.  We only hope the Commission will learn from its mistakes in Christian Coalition and not again miss an opportunity for a final and definitive judicial resolution of these important issues.


Finally, we note a regrettable pattern developing where several commissioners of the Federal Election Commission selectively have been voting not to appeal losses of the Federal Election Commission in litigation.  See, e.g., FEC v. GOPAC, 917 F.Supp. 851 (D.D.C. 1996); Chamber of Commerce v. FEC, 69 F.3d 600 (D.C. Cir. 1995);  Right to Life of Duchess County v. FEC, 6 F.Supp. 2d 248 (S.D.N.Y. 1998).  Unfortunately, this approach unfairly places the Commission in a one-sided “sudden death” situation.  If the Commission loses, no appeal is taken and the litigation is over.  If the other side loses, it can appeal and fight another day.  For example, if the FEC had prevailed fully in the district court, without question the Christian Coalition would have appealed this matter, if necessary, all the way to the Supreme Court. 


Through the years, there have been a number of important cases the Commission has lost in the lower courts but has won on appeal.  See, e.g., Bread Political Action Committee v. FEC, 635 F.2d 621 (7th Cir. 1980)(en banc), rev’d, 455 U.S. 577 (1982); Democratic Senatorial Campaign Committee v. FEC, 660 F.2d 773 (D.C.Cir. 1980), rev’d, 454 U.S. 27 (1981); FEC v. National Right to Work Committee, 665 F.2d 371 (1981), rev’d, 459 U.S. 197 (1982); FEC v. Furgatch, No. 83-0596-GT-(M)(S.D. Cal. Nov. 20, 1984), rev’d, 807 F.2d 857 (9th Cir.), cert. denied, 484 U.S. 850 (1987); and FEC v. Ted Haley Congressional Committee, 654 F.Supp. 1120 (W.D.Wash. 1987), rev’d, 852 F.2d 1111 (9th Cir. 1988); see also United States v. Kanchanalak, 31 F.Supp.2d 13 (D.D.C. 1998) and 41 F.Supp.2d 1 (D.D.C. 1999), rev’d, 192 F.3d 1037 (D.C. Cir. 1999) (Court of Appeals reversed the district court and concluded that 2 U.S.C. 441e prohibits foreign contributions of soft money as well as hard money).  Would the Commission similarly have prevailed on appeal in the Christian Coalition case?  If  the matter had been appealed, what would the Court of Appeals or the Supreme Court have said about “express advocacy” and “coordination?”  Unfortunately, by voting not to appeal the district court’s decision in Christian Coalition, we never will know. 


The Commission has a responsibility to enforce the Act and bring clarity to its application.  Accordingly, we voted to appeal this matter.




______________________                            _________________________________

Date                                                                 Scott E. Thomas





______________________                            _________________________________

Date                                                                 Danny Lee McDonald


[1]  For example, it is difficult to discern why the district court found express advocacy in a 1994 mailing by the Christian Coalition of Georgia, but found no express advocacy in a 1994 nationwide mailing known as “Reclaim America.”  The Georgia mailing identified a candidate by name, emphasized the special importance of his primary race, indicated the Christian Coalition supported his candidacy by labeling him a “Christian Coalition 100 percenter,” and told the reader that the purpose of the mailer was to “help you prepare for your trip to the voting booth.”  Similarly, the Reclaim America mailing exhorted “Christian voters” to “get to the ballot box” in order to make “Washington feel the power of the Christian vote,” and then explicitly identified in a scorecard which incumbent candidates were “GOOD” and which were “MISGUIDED.”  Given the similarity of facts yet the disparate results yielded by the district court, appellate review was plainly mandated.

[2]  In ignoring the statutory standard, the lower court also ignored the definition of “independent expenditure” found in the Commission’s regulations.  Section 109.1(b)(4)(i) explains that an expenditure will not be deemed independent if there is “[a]ny arrangement, coordination, or direction by the candidate or his. . . agent prior to the publication, distribution, display or broadcast of the communication.”  11 C.F.R. 109.1(b)(4)(i)(emphasis added).

   Congress has entrusted the Federal Election Commission with the responsibility of “formulat[ing]

general policy with respect to the administration of this Act.”  FEC v. DSCC, 454 U.S. 27, 37 (1981).  We do not believe the approach taken by our colleagues is the way to “formulate general policy” or

“administer the Act.”  Where the agency has spoken and passed a regulation, we believe it has the responsibility to defend that regulation and to resolve the matter through judicial review.