Campaign finance advisory opinions at the state level.

• Author: Dickerson, Allen

Introduction I. The FEC's Advisory Opinion System II. Colorado: A Toothless Advisory System III. Florida: Too Many Moving Parts IV. Vermont and North Dakota: No Guidance Whatsoever V. Other States Tend to Combine One or More of These Weaknesses VI. Delaware: A New Hope Conclusion INTRODUCTION

Campaign finance law is famously complex. At the federal level, "[c]ampaign finance regulations.., impose unique and complex rules on 71 distinct entities ... subject to separate rules for 33 different types of political speech." (1) But the federal component is but one part of the overall system. Each of the fifty states, and numerous municipalities, has its own often-idiosyncratic regime.

Many areas of the law feature interlocking state and federal regulations, and sophisticated entities regularly employ legal counsel to help them navigate those requirements. But most areas of the law do not regulate activity "at the heart of the First Amendment." (2) Nor do they purport to cover unsophisticated individuals and small groups. By contrast, many state systems impose registration and reporting requirements on groups raising and spending far less than a thousand dollars. (3)

Of course, there is always the danger that civically-minded individuals will not foresee the dangers of noncompliance involved with soliciting $20 donations, (4) accepting donated materials for fliers, (5) or receiving pro bono legal advice. (6) But even where individuals or groups are aware of the need to determine and comply with local campaign finance rules, they may find that those rules are unclear or overwhelmingly complex.

This complexity poses a constitutional difficulty because "[p]rolix laws chill speech for the same reason that vague laws chill speech: People of common intelligence must necessarily guess at the law's meaning and differ as to its application." (7) This is why the Supreme Court has noted that "rigorous adherence [to the promotion of bright-line rules] ... is necessary to ensure that ambiguity does not chill protected speech." (8)

There has been substantial and controversial litigation concerning the scope and interpretation of state and federal campaign finance laws. But litigation is expensive, and not all speakers wish to bear the burdens or notoriety associated with constitutional challenges. Some--indeed most--simply wish to know what is required of them, with every intention of studiously complying with their legal duties. If they cannot gain concrete guidance, they may not speak. This is especially true given the severe penalties provided by many state campaign finance systems, and the prevalence of private rights of action (often used by political opponents), (9) which together make the costs of legal errors potentially orders of magnitude greater than the value of the original activity. (10)

At the federal level, this concern is somewhat ameliorated by the FEC's ability to provide advisory opinions. There have been hundreds of these opinions written to date. (11) An advisory opinion request, however, will not always be granted. This is because there are six commissioners, four of whom must vote to approve an advisory opinion, and no more than three commissioners may be of the same political party. (12) Tie votes on advisory opinions do occur. (13) But obtaining an advisory opinion conveys a number of advantages. Most importantly, abiding by the opinion immunizes the requester against legal liability.

The states should consider the federal system, in this instance, as a model. By creating advisory opinion mechanisms that concretely advise potential speakers as to their rights and responsibilities, state and local governments can eliminate a major constitutional infirmity: vague, unclear, and prolix statutes that do not provide adequate guidance and force risk-averse speakers to be silent.

State systems should borrow three elements from the federal model. First, there should be a single officer or agency empowered with the interpretation of campaign finance laws and with the authority to issue advisory opinions concerning their operation. Second, that agency should be the same entity charged with enforcing the campaign finance laws. And third, there should be complete legal immunity for any requester, or similarly-situated person or entity, that follows the guidance given in an advisory opinion.

Table 1 categorizes each of the fifty states based on their adherence to this model. By our count, thirteen states have systems that closely conform to the federal model. The remaining states have one or more deficiencies. In some cases, states have no advisory opinion mechanism at all and provide little guidance and no safe harbor for activists and political committees wishing to understand the requirements of local law.

This Article summarizes these results and the lessons learned from them. In particular, we examine a number of ways in which states have failed to develop comprehensive advisory opinion mechanisms. Indeed, despite the large volume of legislation designed to tighten campaign finance laws, and the resulting complexity seen at the state level, most states seem to have entirely overlooked the importance of a comprehensive advisory opinion mechanism.

1. THE FEC'S ADVISORY OPINION SYSTEM

   The Federal Election Commission (FEC) is the administrative agency charged with enforcing the federal campaign finance laws. (14) It is a troubled entity: the last few years have seen a string of major decisions deadlock on partisan 3-3 votes; (15) an inability to nominate and confirm new commissioners has led to all serving commissioners staying beyond their assigned terms; (16) and the agency's rules have on occasion been invalidated by federal courts. (17) Yet because the alternative to an independent commission is enforcement of campaign finance laws by politically-entangled entities, the FEC appears to be here to stay. (18)

   Despite its weaknesses, the Commission has an important and praiseworthy role. The agency's advisory opinion power allows it to expeditiously clarify what the federal campaign finance regime requires, helping to limit the law's troubling ambiguity. Under the current system, any party that plans to engage in some activity that may brush against the campaign finance system may petition the FEC for such an opinion. (19) The Commission must act on these advisory opinion requests (AORs), (20) often within thirty days. (21) More importantly, the Commission's answer on an AOR is binding on the agency in that the FEC may not bring an enforcement action against an entity for engaging in conduct that the advisory opinion blessed. (22)

   One high-profile example of the AOR process in action involved the activities of late-night comedian Stephen Colbert. Mr. Colbert successfully procured an advisory opinion shielding The Colbert Report's parent company, Viacom, from having to open its books to the Commission when the Report "reported" on the activities of Colbert's farcical independent- expenditure-only committee ("Super PAC") Americans For a Better Tomorrow, Tomorrow. (23) Thanks to the FEC's advisory opinion system, Stephen Colbert and more serious entities can ensure that their actions will not initiate a multiyear FEC investigation with the possibility of fines and the certainty of legal fees. Such risks are significant for entities like Viacom, but they are devastating for smaller groups that simply cannot run the risk of costs that would total many times their operating budgets. Allowing entities to check with the FEC--rather than gambling on the advice of a lawyer or a lay reading of the law--provides the type of bright-line guidance necessary when dealing with political speech and associational rights. As Justice Kennedy wrote in Citizens United, "[t]he First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek declaratory rulings before discussing the most salient political issues of our day." (24)

   In practice, of course, many entities and individuals--especially those involved with resource-intensive federal elections--are represented by counsel. But the FEC's advisory opinion power still remains a model. By and large the states have not implemented systems that offer the same level of certainty or flexibility. (25) This places would-be actors in the awkward position of either not speaking or being forced to sue in order to ascertain their rights. The Center for Competitive Politics is currently representing one such client, the Coalition for Secular Government, in such a case in Colorado. (26) The result is precisely the situation that Justice Kennedy inveighed against: a small organization not knowing what it can and cannot do, and having no option short of litigation for finding out.

   Unfortunately, thirty-eight states--nearly three-quarters of the Union--have failed to replicate the FEC's advisory opinion system. (27) Instead, many states offer either no such mechanism--forcing speakers to guess as to what is permitted--or have created complex systems that render any guidance illusory. (28) These failures actively chill speech by making attorneys indispensable to organizations, many of which are small and cannot pay experienced counsel, that must understand state regulatory systems.

   To demonstrate the wide diversity of state advisory opinion regimes, we have selected a sampling of states from our survey. Some states, such as Vermont and North Dakota, simply have no route for authoritative guidance aside from suing a state agency for a declaratory judgment. It is impossible to obtain an advisory opinion in those states. Others, such as Florida, have systems which, despite having all the necessary components, have crippled the overall system's effectiveness by spreading its various functions across multiple agencies. And in Colorado, elements of an advisory opinion system exist, but there is no mechanism that grants...