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For Immediate Release
November 15, 2006

Bob Biersack
Kelly Huff
George Smaragdis
Michelle Ryan



WASHINGTON –The Sierra Club will pay a $28,000 civil penalty to settle charges that it used funds from its corporate treasury to pay for a brochure expressly advocating the election and defeat of candidates in the 2004 presidential and U.S. Senate races, the Federal Election Commission announced today.

“This is one of the most important express advocacy cases the Commission has resolved in recent years,” said Commission Chairman Michael Toner.  “I am very pleased that the Commission was able to conciliate this case and provide further guidance to the public on the appropriate scope of the express advocacy test,” added Toner.

The settlement follows a Commission determination that the bar on using corporate treasury funds to pay for independent expenditures applies not only to communications containing so-called “magic words,” such as “vote for” or “vote against,” but also to a broader set of communications that are “unmistakable, unambiguous, and suggestive of only one meaning,” and can “only be interpreted by a reasonable person as containing advocacy of the defeat of one or more candidates.”  This settlement with the Sierra Club, a 501(c)(4) organization, represents the first major case to consider the reach of the express advocacy test in light of the landmark Supreme Court case, McConnell v. FEC.  

At issue was a pamphlet distributed by the Sierra Club in Florida prior to the 2004 general election.  The front of the pamphlet exhorted the reader to “LET YOUR CONSCIENCE BE YOUR GUIDE,” accompanied by various nature scenes.  The heading of the interior of the pamphlet urged the reader, “AND LET YOUR VOTE BE YOUR VOICE.” 

The pamphlet compared the environmental records of President Bush and Senator Kerry and U.S. Senate candidates Mel Martinez and Betty Castor through checkmarks and written narratives.   Kerry received checkmarks in every box on all three environmental issues addressed in the pamphlet; Bush received only one checkmark in a single category, and in that category, Kerry received two checkmarks.  In the Senate race, Castor received checkmarks in all three categories, while Martinez received none.  The accompanying narratives made clear that a checkmark represented a favorable environmental record in the eyes of the Sierra Club.  The Commission found that the pamphlet “expressly advocated” Kerry and Castor’s election and Bush and Martinez’s defeat. 

Prior to the Supreme Court’s decision in McConnell v. FEC, which upheld most of the Bipartisan Campaign Reform Act of 2002, two Federal appeals courts had held that, as a constitutional matter, only communications containing the so-called “magic words” could be subject to Federal campaign finance law. 

In McConnell, however, the Supreme Court made clear that “express advocacy” was not a constitutional boundary “that forever fixed the permissible scope of provisions regulating campaign-related speech.” 

Because the Sierra Club brochure contained “express advocacy,” it was an “independent expenditure.”  Federal law prohibits corporations from using treasury funds to make independent expenditures and all of the funds spent on the brochure by the Sierra Club came from its corporate treasury. 

This release contains only disposition information.


MUR 5634


Sierra Club, Inc.


Edmund A. Hamburger


Corporate expenditures


Conciliation Agreement: $28,000 civil penalty


Documents from this matter are available from the Commission’s web site at http://www.fec.gov by entering 5634 under case number in the Enforcement Query System.  They are also available in the FEC’s Public Records Office at 999 E St. NW in Washington.


There are four administrative stages to the FEC enforcement process:

1. Receipt of proper complaint

3. “Probable cause” stage

2. “Reason to believe” stage

4. Conciliation stage

It requires the votes of at least four of the six Commissioners to take any action. The FEC can close a case at any point after reviewing a complaint.  If a violation is found and conciliation cannot be reached, then the FEC can institute a civil court action against a respondent.                                                     



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