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 3 of 5)

The Commission from Another Planet The FEC has suffered the worst losing streak since the 1973 Philadelphia 76ers went 9-73. But the agency is stubborn, and has promulgated rules that flagrantly ignore the standards of Buckley. These regulations include the Buckley "magic words" test but also find express advocacy in communications that, "[w]hen taken as a whole and with limited reference to external events, such as the proximity to the election, could only be interpreted by a reasonable person as containing advocacy of the election or defeat of one or more clearly identified candidate(s)."

To apply this "reasonable person" standard, the regulations require the FEC to consider whether the advocacy is "unmistakable, unambiguous, and suggestive of only one meaning;" and "[r]easonable minds could not differ as to whether it encourages actions to elect or defeat one or more clearly identified candidate(s) or encourages some other kind of action." Hardly the model of clarity anticipated by the Supreme Court.

Significant portions of these regulations were declared unconstitutional in a second case brought by the Maine Right to Life Committee. But since this is a federal district court decision, it does not provide precedent to protect corporations outside the District of Maine. Elsewhere, both parts of the express advocacy definition will be enforced by the FEC. Once again, grassroots groups cannot freely exercise their First Amendment rights as determined by the Supreme Court.

Former FEC Chairman Trevor Potter acknowledged this stubbornness: The FEC is "close to being on a different planet from the Supreme Court." Conversely, Commissioner Danny Lee McDonald complains that "the Court just doesn't get it."

An Insiders' Game

If the problem with government regulation of politics were simply a matter of the FEC's definition of express advocacy, then--given the judiciary's solicitude for the First Amendment and its jaundiced eye toward the FEC's animadversions --there might not be that much to get upset about. But there is much more to this story than a dispute about the law of free speech. As a practical matter, because of the ambiguity and complexity of the campaign finance laws, participating in the political process, even indirectly through issue advocacy, is becoming as difficult, confusing, and cumbersome as complying with the income tax laws.

Like the tax laws, the campaign finance laws seem largely arbitrary and evolve from case to case as the FEC tries to keep its thumb on every species of ordinary political behavior. The result is a contradictory patchwork of complex rules that is transforming the world of political campaigning into a domain for insiders and experts.

Just as executives and entrepreneurs can't make a move without consulting their accountants about the tax consequences, most public affairs executives and PAC directors can't take many actions today without consulting their election law attorneys. When it's easier to calculate the tax consequences of a like-kind transfer than it is to determine whether you can solicit a contribution from someone on behalf of an organization you both belong to, something is clearly wrong.

If your organization is deemed to have "expressly advocated" in favor of (or against) a particular candidate, the FEC will deem it an independent expenditure in that campaign, or an "in-kind" contribution to the candidate's campaign if you are careless enough to mention your plans to a campaign staffer. In either situation, your organization becomes subject to the complex FEC reporting requirements, as well as the possibility of civil fines if you don't do the reports correctly. This puts the FEC in the business of regulating speech depending on its political content; if you want to avoid having to submit to FEC reporting requirements and contributions limits, you better watch what you say.

To appreciate how perverse this is, consider the following paradox: If you set up a pornographic site on the World Wide Web, the government cannot regulate you in any way. But if you set up your own "Vote for Bill Clinton" site on the Web (or simply print your own bumper stickers), and spend more than $250 on the project, you become subject to FEC reporting requirements. If you spend more than $1,000, you have to register with the FEC as a "political committee." While the actual expense of registering and reporting is negligible (provided you do so correctly), failure to file could result in a substantial fine-- even if you never have a single contact with the Clinton campaign.

To be sure, the FEC is not saying that you can't exercise your right to political speech; it is only saying that you must submit to the "disclosure" process if you do. But this scheme would seem to fall within the compass of Judge Joseph Story's famous maxim that what the government may not do directly it may not do indirectly. And the indirect effect of this regime is clear: It is more difficult and costly to engage in political speech. The practical result, of course, is to reduce participation from genuine grassroots organizations, which lack the resources and the expertise to comply with this increasingly complicated system.

A Culture of Complaints

In other contexts the goo-goos of the world could be expected to complain about the "chilling effect" this regime is having on political speech. But in fact the goo-goos are a large part of the problem. While the IRS and other federal agencies with investigatory and audit powers typically initiate their own investigations, the FEC routinely opens investigations of political activities at the behest of private parties.

In fact, more FEC investigations result from outside complaints than from the FEC's own initiative. Goo-goo groups such as the Center for Responsive Politics and Common Cause specialize in filing complaints with the FEC alleging violations by PACs, candidates, and donors, which the FEC frequently acts upon. The Center for Responsive Politics pores over contribution reports and prides itself on blowing the whistle on individuals who exceed their aggregate $25,000 annual contribution limit.

Filing an FEC complaint has become a favorite harassment tactic for opposing campaigns and interest groups. The National Abortion Rights Action League brought the initial complaint against Massachusetts Right to Life back in 1978. Anti-abortion groups have brought complaints that resulted in FEC investigations of NOW and Planned Parenthood. The Republican and Democratic parties bring complaints against each other regularly. And the Democratic Party launched an attack on the Christian Coalition, alleging that it made a variety of forbidden contributions and expenditures on behalf of candidates running in 1992 and 1994. Just recently, the FEC filed suit based upon those allegations. Once a complaint is filed, the FEC opens a "Matter Under Review" (MUR) investigation. The MUR files are made public at the conclusion of the investigation, which can take years to complete. Our analysis of the 524 MURs completed and made public during the past three years shows that 366 were initiated as a result of outside complaints. And, in an unusual twist, federal law allows complainants who are dissatisfied at the FEC's dismissal of their complaint to file suit in federal court. Hence, your opponents can use federal election laws to make your life miserable even when the FEC won't play along. A case involving the American-Israel Public Affairs Committee, originally filed with the FEC in January 1989, is still in court.