Dark money rises: federal and state attempts to rein in undisclosed campaign-related spending.

• Author: Eagan, Kristy
• Position: P.829-868

2. The Effect of Splits on Disclosure

   At present, the FEC Commissioners are divided evenly over what constitutes express advocacy and electioneering communications, and over what types of activity qualify a group as a PAC. The effect of these splits is that the agency lacks the four votes necessary to commence enforcement proceedings against groups that, according to three of the Commissioners, are engaged in express advocacy, ECs, or that qualify as PACs, but have not complied with the requisite disclosure requirements. (219)

   1. Defining Express Advocacy

      The FEC is split over whether it acted outside of its statutory and constitutional authority in promulgating and continuing to enforce it's definition of "express advocacy" under [section] 100.22(b). (220) The FEC promulgated subsection (b) in 1995 after two courts held that express advocacy extended beyond the "magic words" of Buckley. First, in FEC v. Massachusetts Citizens for Life, the Supreme Court held that a detachable voter guide listing the names of pro-life candidates next to the words "Vote Pro-Life" was express advocacy. (221) The Court reasoned that the fact that the communication was marginally less direct than Buckleys magic words was not dispositive where the message supplied "in effect an explicit directive" to vote for the named candidates. (222) The following year, the Ninth Circuit held in FEC v. Furgatch that a newspaper ad criticizing the president, published three days before the presidential election, and asserting "DON'T LET HIM DO IT" was express advocacy. (223) The Court reasoned that express advocacy included words not listed by the Supreme Court in Buckley which, "when read as a whole and with limited reference to external events, [were] susceptible of no other reasonable interpretation than an exhortation to vote for or against a specific candidate." (224) The FEC subsequently revised [section] 100.22, adding to the list of examples of express advocacy in subsection (a) (225) and adopting subsection (b), which incorporates the language of Furgatch practically verbatim. (226)

      Shortly after the FEC implemented [section] 100.22(b), several courts found it invalid on constitutional and statutory grounds. (227) As a result of these decisions, the FEC ceased enforcement of [section] 100.22(b) in those circuits that held it invalid. (228) In McConne11, the Supreme Court clarified by stating that Buckleys limiting construction was "a product of statutory interpretation, not a constitutional command." (229) In light of the Supreme Court's pronouncement, the Fourth Circuit in Real Truth About Abortion v. FEC reversed course, (230) and the FEC resumed enforcement of [section] 100.22(b). (231)

      FEC Commissioners McGahn, Hunter, and Peterson believe that subsection (b) is unconstitutionally vague. (232) Commissioner McGahn makes two interrelated points. First, he maintains that [section] 100.22(b) is unconstitutionally vague to the extent that it reaches speech that is not express advocacy as the Supreme Court defined it in Buckley. (233) McGahn reads McConnellas only upholding the EC provisions to the extent that the speech being regulated is the functional equivalent of express advocacy. (234) He believes that the Supreme Court only upheld the EC provision regulating speech that was the functional equivalent of express advocacy because the provision contained objective triggers, which are missing from the express advocacy provision. (235)

      Secondly, McGahn asserts that, even if subsection (b) could constitutionally regulate speech that was not express advocacy or its functional equivalent, it would still be unconstitutional because it is inherently vague. (236) He believes that subsection (b) contains several terms that are inherently vague and inconsistent with each other, such as the requirement that the FEC consider the communication "taken as a whole" as well as its "electoral portion." (237) McGahn argues that, unlike the EC provision, subsection (b) invites the FEC to consider "rough-and-tumble" factors, such as contextual references and general proximity to the election, that the Court ordered the agency to eschew, and which are sufficiently similar to the two-part eleven-factor test that the Supreme Court struck down in Citizens United. (238)

      Commissioners McGahn, Hunter, and Peterson further argue that the agency lacks the jurisdictional capacity to act. They contend that McConnell did not overrule prior decisions invalidating subsection (b) on statutory grounds. (239) They then further contend that the Fourth Circuit in Real Truth About Abortion never addressed the FEC's statutory authority and, thus, did not overrule prior cases within its jurisdiction invalidating [section] 100.22(b) on statutory grounds. (240) Commissioner McGahn reasons when the Supreme Court stated that Buckleys interpretation was "the endpoint of statutory construction," (241) it spoke to the issue and the FEC should not second-guess the Court. He argues that, even if the FEC had the authority to promulgate subsection (b), which he believes it did not, in order to properly revive it, the FEC would have had to utilize Notice and Comment Rulemaking. (242)

      Moreover, McGahn, Peterson, and Hunter point out that when Congress amended the FECA in 2002, it did not grant the FEC authority to expand the definition of express advocacy. Contrariwise, Congress considered and ultimately rejected an amendment that would have expanded the definition of express advocacy due to concerns over its constitutionality. (243) They assert that, at the time of the BCRA's enactment, several members of Congress believed that [section] 100.22(b) was unconstitutional and were aware that the FEC was not enforcing it. (244) They argue that, by refusing to expand the definition of express advocacy, Congress, at a minimum, accepted the preexisting construction. (245) In short, they believe the FEC should cease enforcing the regulation in order to avoid enmeshing itself in "'serious statutory and constitutional questions' raised by intercircuit nonacquiescence." (246) and that complete abandonment of the rule in all jurisdictions is necessary given the increased use of media to target national audiences without regard for jurisdictional boundaries. (247)

      Nevertheless, without the four votes necessary to cease enforcement, Commissioners McGahn, Peterson, and Hunter continue to construe [section] 100.22(b) narrowly. (248) They believe that, because [section] 100.22(b) follows the court's holding in Furgatch, the FEC should adhere to the central holding of Furgatch, which, according to these Commissioners, was that express advocacy must contain some explicit words of advocacy. (249) They believe that the FEC should find that speech is not express advocacy if "any reasonable alternative reading of speech can be suggested." (250) These Commissioners reject the test used by the other three Commissioners, calling it "inherently vague" and prone to the same constitutional infirmities described by the Court in Wisconsin II (251) and claiming further that such a test would cause some communications to qualify as both independent expenditures and as ECs, which is prohibited by the FECA and creates a filing conundrum for speakers. (252)

      Under these three Commissioners' interpretations of [section] 100.22(b), the following two advertisements do not constitute express advocacy. Advertisement 1 states: "[Candidate X] has been one of the least effective members of Congress. This fall, let's make history by changing that. Learn about HR 3638." (253) Advertisement 2 states: "Military voting matters. That's why [Candidate X] is such a disappointment.... [S]houldn't military voices and votes matter? Shouldn't yours? Be heard this fall." (254) Why? Nothing in the advertisements "explicitly inform[s] the listener that there is an election coming up or associate[s] the communication's message with a federal campaign." (255) The fact that listeners may be aware that an election is coming does not make the communication electoral in nature. (256) Moreover, even if part of the advertisement included an unambiguous reference to the election, reasonable minds could still differ as to whether the advertisement exhorts the election or defeat of a candidate, (257) as opposed to encouraging individuals to contact the candidates, protest outside of their office, or write letters to the editors of local newspapers. (258)

      On the other hand, Commissioners Weintraub, Walther, and Bauerly (259) believe that [section] 100.22(b) is constitutional and that the FEC has the requisite authority to enforce it. They reason that McConnell foreclosed any debate as to whether express advocacy could constitutionally encompass speech that falls outside of the scope of Buckleys magic words. (260) Moreover, they believe that the test in subsection (b) is practically identical to the "appeal to vote" test, which the Supreme Court upheld in Wisconsin II in that it employs objective and restrictive criteria. (261) Finally, they argue that any lingering doubts regarding [section] 100.22(b)'s constitutionality should have been eliminated post-Citizen's United, since the regulation now acts solely as a trigger for disclosure requirements and no longer as a ban on certain types of speech. (262) Proponents of this viewpoint also stress that the Supreme Court's two most recent decisions expressly reject attempts to limit the scope of express advocacy to Buckleys magic words, (263) or to limit disclosure to the functional equivalent of express advocacy. (264)

      There are two primary arguments that can be made in support of the position that the FEC has the requisite authority to enforce subsection (b). First, when Congress codified the term "expressly advocating," it made no attempt to define or limit it. (265) Thus, in promulgating subsection (b), the FEC lawfully exercised its administrative duty to "prescribe rules [and] regulations ... to...