The U.S. 4th Circuit Court of Appeals has dealt another body blow to the Federal Election Commission's crusade to regulate political speech. (See "Gagging on Political Reform," October 1996.) On April 7, the court said the FEC must pay a group's legal costs because the agency did not prosecute it in good faith.
Following the 1992 election, the FEC brought suit against the Christian Action Network, which had run TV ads identifying then-candidate Bill Clinton as "pro-homosexual" and inviting viewers to phone for more information. An incorporated nonprofit organization, CAN could not legally campaign for a federal candidate. The FEC charged that the group's commercials amounted to either an "independent expenditure" or an "in-kind" contribution to Bush's campaign–either of which would be an illegal corporate expenditure.
Though the ads stopped short of using prohibited "express advocacy" terms such as "vote for" or "support," the FEC charged that the sounds and images in the ads constituted express advocacy and should be subject to regulation. In other words, no words of advocacy would necessarily be required to constitute "express advocacy."
The 4th Circuit Court laughed this novel interpretation out of court last year, castigating the FEC severely for ignoring 20 years of case law on this issue. "It would be inappropriate for us," the court noted wryly, "to even inquire whether the identification of a candidate as pro homosexual constitutes advocacy for, or against, that candidate."