Gagging on Political Reform

The Federal Election Commission and its "good government" allies are crushing free speech.

Allison R. Hayward & Steven Hayward from the October 1996 issue

(Page 2 of 5)

The 'Evil' of Expression

In 1979, the FEC brought an action against the American Federation of State, County, and Municipal Employees, taking issue with a poster AFSCME had produced before the 1976 election depicting President Gerald Ford hugging Richard Nixon, with the headline "Pardon Me." A federal district court rejected the FEC's contention that the poster amounted to express advocacy, saying that the poster represented political speech protected by the First Amendment.

The FEC was not to be deterred by this early setback, and it brought a suit against the Central Long Island Tax Reform Immediately Committee (CLITRIM), a grassroots anti-tax group. CLITRIM had circulated a voter's guide that discussed the organization's views on taxes and government spending, along with the stands local candidates had on these issues. The publication did not contain any of the express advocacy terms spelled out in Buckley. The nearest it came was the suggestion, "if your Representative consistently votes for measures that increase taxes, let him know how you feel."

This time the Second Circuit Court of Appeals delivered the FEC's rebuff, writing pointedly that "contrary to the position of the FEC, the words 'expressly advocating' meant exactly what they say....The [FEC's] position is totally meritless." As if to underscore its impatience, the court added, "The danger [to the First Amendment] is especially acute when an official agency of government has been created to scrutinize the content of political expression, for such bureaucracies feed upon speech and almost ineluctably come to view unrestrained expression as a potential 'evil' to be tamed, muzzled or sterilized." The Supreme Court revisited the issue in 1986, in a case the FEC had brought against Massachusetts Citizens for Life (MCFL), an anti-abortion group that had circulated a newsletter before the 1978 election titled "Everything You Need to Know to Vote Pro- Life." MCFL surveyed nearly 500 candidates, featured several hundred, and spent under $10,000 to produce the newsletter. It listed pro-life candidates on a coupon that voters could take to the polls. The FEC contended that this was express advocacy and sought a $5,000 civil penalty against MCFL. The heart of the FEC's complaint against MCFL was that because MCFL was a corporation (albeit a not-for-profit corporation), it had violated the prohibition against corporate campaign contributions.

Allowing Advocates to Advocate

The Supreme Court agreed with the FEC that the take-to-the-polls coupon did constitute express advocacy, but, significantly, the Court recognized that nonprofit, issue- oriented organizations exist precisely for the purpose of engaging in this kind of political speech. So the Court carved out an exception to the ban on corporate campaign contributions, allowing certain nonprofits to spend general corporate funds for political messages.

The Court concluded that if a nonprofit was formed to express ideas, rather than for a business purpose; has no shareholders; and was not established by a business corporation or labor union, the corporate spending ban could not constitutionally apply to its activities. Groups that advocate positions on social issues probably fall within the test, but groups formed by businesses to advocate positions on economic issues, such as the U.S. Chamber of Commerce, cannot take advantage of this exception.

Buoyed by this partial victory (MCFL did have to report its expenses for voter's guides to the FEC as an independent expenditure), the FEC crafted a regulation saying that voter's guides must not "suggest or favor any position on the issues covered" or offer any "editorial opinion." It immediately set out after Maine Right to Life for a voter's guide that discussed candidates according to a 0-to-100 rating system.

Once again the FEC was slapped down in court. The U.S. Court of Appeals for the First Circuit used direct and clear language: "Trying to discern when issue advocacy crosses the threshold and becomes express advocacy invites just the sort of constitutional questions the Court sought to avoid in adopting the bright-line advocacy test in Buckley....It is not the role of the FEC to second-guess the wisdom of the Supreme Court."

The FEC also went after fundraising letters from the National Organization for Women and the Survival Education Fund that contained disparaging comments about officeholders, including President Reagan. The FEC lost these cases in district court.

Pictures, Parties, and Pandora's Box

More recently, the FEC hauled the Christian Action Network into court for TV ads it had produced before the 1992 election that were critical of then-candidate Bill Clinton's position on homosexuality. Although the ads contained none of the express advocacy terms spelled out in Buckley, the FEC sought to create a new standard for video, arguing that visual messages should be evaluated differently than purely verbal messages because visual messages "raise strong emotions amongst viewers."

Once again, a district court sent the FEC packing, writing: "To expand the express advocacy standard...in this manner would be to render the standard meaningless. Such an expansion of the judicial inquiry would open the very Pandora's Box which the Supreme Court consciously sought to keep closed."

In June of this year, the FEC's crusade to cast a wide net over independent political advocacy received its sharpest setback yet, in Colorado Republican Federal Campaign Committee v. FEC. This case arose out of radio ads by the Colorado Republican Party attacking then-Sen. Tim Wirth's positions on various issues. These ads were broadcast months before the 1986 election, when there were no declared Republican candidates running for the seat. But the FEC sought to have these radio ads deemed express advocacy on behalf of the eventual Republican nominee, and therefore to count against the party's spending limit. In effect, the FEC's interpretation made it technically impossible for parties to make independent expenditures.

The Court sided with the Republican Party, striking down the limitations on independent party expenditures, reasoning that even a political party was entitled to express its views independent of coordination with a candidate. In an unexpected sign of timidity, however, the Court did not address the question of whether the Wirth advertisement contained express advocacy at all. Whether this lapse indicates a First Amendment loss of faith on the Court remains to be seen.