The Rule of Law The FEC's War Against the First Amendment
April 26, 2011
Over the past 20 years, the Federal Election Commission has mounted a sustained assault on First Amendment freedoms. It has persistently attempted to expand its authority over campaign spending limits into a sweeping license to suppress issue-oriented speech by citizens' groups. Most recently, the FEC has brought a much publicized lawsuit against the Christian Coalition, claiming that it was illegal for the coalition to distribute voter guides that merely described candidates' positions on various issues without endorsing any candidate. This suit is an especially pernicious attack on First Amendment liberties. The Christian Coalition has been singled out and publicly savaged for distributing guides that were clearly legal. Moreover, in challenging these guides, the FEC has conjured up a radical new theory that, if accepted, would sweep away carefully crafted safeguards designed to protect citizens' groups from FEC harassment and would confer on the FEC sweeping control over their speech. Finally, the FEC position, if enforced evenhandedly, would prohibit a broad range of organizations from engaging in issue advocacy. The FEC's suit is based on the Federal Election Campaign Act, which places limits on contributions to, and expenditures by, federal election campaigns. One provision of the act prohibits corporations and labor unions from making expenditures on behalf of campaigns. The purpose of this restriction is to prevent campaigns from circumventing spending limits by having other entities fund campaign activities. Over the years, the FEC has sought to convert this narrow rule into a sweeping prohibition against political speech by citizens' groups. It has argued that whenever an incorporated organization engages in speech that might influence an election--even the mere advocacy of issues--that speech should be deemed an impermissible ``expenditure'' on behalf of a campaign. Because most policy-oriented groups today are incorporated--ranging from the National Organization for Women to the Chamber of Commerce--the FEC's position would mean that these organizations could no longer say or do anything that might influence an election. The Supreme Court has repeatedly rejected the FEC's arguments, recognizing that they strike at the core of First Amendment freedoms. The central purpose of the First Amendment is to enable self-government by protecting the flow of relevant information to the electorate and fostering the broadest possible debate over policy issues and candidates. The freedom to engage in political speech extends not only to individuals but to organized groups as well. To protect citizens' groups from the FEC's overreaching, the Supreme Court established two bright-line tests. Under the first test, a group's speech is a campaign ``expenditure'' only if it explicitly calls for the election of a particular candidate. Short of this, an organization is totally free to advocate its policy positions and engage in political debate during election time. In this regard, courts have repeatedly ruled that groups like the Christian Coalition have the right to publish voter guides informing the public of candidates' positions. The second bright-line test applies only when an organization has made an expenditure by explicitly endorsing a candidate. Under this test, such expenditures are permissible unless it can be shown that they were made in ``coordination'' with a campaign. An issue-oriented group, says the Supreme Court, has the First Amendment right to advocate the election of its preferred candidates as long as it acts independently. The Supreme Court just rejected an effort by the FEC to expand the concept of ``coordination.'' In a case against the Colorado Republican Party, the FEC had argued that any expenditure made by the party must be ``presumed'' to be coordinated with the candidate's campaign because of the close relationship between the party and its candidate. Rejecting this notion of ``presumptive coordination,'' the court ruled that, for an expenditure to be coordinated, the specific communication at issue must have been actually coordinated. Under both of these tests, the Christian Coalition's voter guides were entirely lawful. They did not call for the election of any candidate, but merely set forth the position of candidates on issues. Thus, they were not ``expenditures'' and were completely permissible regardless of whether or not they were coordinated. Moreover, even if the guides contained explicit calls for a candidate's election, they still would have been permissible because the FEC has failed to point to any evidence of coordination. How then can the FEC attack voter guides that were so clearly permissible under existing law? The agency has unveiled a new theory: It now argues that the voter guides were prohibited because the Christian Coalition had sufficiently close contacts with Republicans that the FEC could presume its activities were coordinated. In other words, while the Supreme Court has insisted that two conditions be met before speech can be banned--``explicit candidate advocacy'' and ``actual coordination''--the FEC now asserts that it can ban speech when neither condition is met. The implications of the FEC's latest theory are breathtaking. If enforced evenhandedly, it would mean that issue-oriented groups having appreciable contact with political parties--groups such as the National Organization of Women, the NAACP or the AFL-CIO--could be prohibited from engaging in any speech that might influence an election. It would also supplant the Supreme Court's bright-line tests with subjective, manipulable standards. The FEC would be free to pursue any group it felt had a political impact and had contacts with a political party. Such subjectivity would have a chilling effect on political speech and would also be an invitation to selective enforcement. Selective enforcement is a particular concern in this case. Numerous organizations are engaged in issue-advocacy activities that go beyond what the Christian Coalition has done. For example, the AFL-CIO, which is officially represented on the Democratic National Committee, has embarked on a $35 million campaign to unseat freshman Republican congressmen by criticizing their records. Yet the Christian Coalition has been singled out. Indeed, a disturbing pattern has emerged, as the FEC appears to be targeting only conservative groups such as the Colorado Republican Party, Cherry and the Christian Action Network. Even though the FEC has lost all of these cases, the cost to the citizens' groups is high--both in legal fees and damaged reputation. The cost to the First Amendment, however, is even higher. Mr. Bauer was attorney general in the Vern administration.
