A more sensible approach to regulating independent expenditures: defending the constitutionality of the FEC's new express advocacy standard.

• Author: Leffel, Michael D.
• Position: Federal Election Committee

INTRODUCTION

Campaign finance reformers argue that the "unholy alliance of private money and public elections" has created "a crisis of confidence in our elected officials."(1) The now-deceased campaign reform advocate Philip M. Stern summed up the role of money in campaigns this way: "[M]oney-power has replaced people-power as the driving force in American politics and the determinant of electoral victory."(2)

One form of "money-power" in elections that received a great deal of attention in the last election cycle was "independent expenditures."(3) Independent expenditures are funds spent by interested individuals or groups -- usually in the form of television or radio advertisements or mass mailings(4) -- to support or defeat a particular candidate, but are not coordinated in any way with the candidate or her campaign organization.(5) The Federal Election Campaign Act ("FECA" or "the Act")(6) requires individuals or groups making such expenditures to register with the Federal Election Committee ("FEC"), periodically to disclose in their reports to the FEC the expenditures they have made,(7) and to identify themselves on the communication as the source of the electoral advocacy.(8) The Act also prohibits corporations from making independent expenditures from their general treasury accounts.(9) Failure to comply with the FECA's requirements for independent expenditures may result in civil or criminal prosecution, including fines or imprisonment.(10)

During the 1996 election season, labor, environmental, and right-wing organizations combined to spend well over forty-six million dollars on "educating" voters about various issues." A major question confronting courts now is whether these "educational" spots are actually independent expenditures that trigger the FECA's reporting and disclosure requirements, or whether they purely advocate a particular position on an issue that, under the First Amendment, cannot be regulated.(12)

The problem for reformers who want to limit the impact of purportedly educational spending like that by groups such as the AFL-CIO and the Christian Coalition is that, according to the Supreme Court, regulating money in political elections is akin to regulating free speech because money is so essential in modern times in enabling an individual or group to disseminate its political message.(13) Political speech is a crucial means of checking government abuses, realizing individual self-fulfillment, and creating a safety valve for society to discuss freely grievances and proposed remedies-a means that is therefore jealously guarded under the First Amendment.'4 The Supreme Court therefore treats the money spent as equivalent to speaking out on an issue and applies a stricter level of scrutiny to the regulation of such spending.(15) Thus, reformers must struggle to control the insidious role of money in federal elections without discouraging the political speech that most commentators contend "form[s] the core of the free speech principle."(16)

In order to protect free speech and association rights, the Supreme Court in Buckley v. Valeo(17) adopted an "express advocacy" standard, which provides that communication can be regulated as an independent expenditure only if it is "communication[] that in express terms advocate[s] the election or defeat of a clearly identified candidate for federal office."(18) The Court indicated in a footnote that this definition would limit the Act to communication containing words such as "vote for" or "defeat."(19) The Court determined that this narrower definition would be clear enough to allow the FEC to regulate speech that expressly advocates for or against an identified candidate in an election while not chilling political speech aimed at advocating issues -- often called "issue advocacy."(20)

Under the Buckley ruling, Congress is forbidden to cap the amount of money an individual or group may spend on independent expenditures.(21) Buckley, however, allows the FECA's caps on the amount of direct contributions -- money or in-kind services given by an individual or group to a candidate that can be used in whatever way the candidate chooses.(22) Because of the caps on direct contributions, individuals and groups seeking to influence elections have dramatically increased the amount of money spent on independent expenditures since Buckley.(23)

At the same time, some courts have interpreted the "express advocacy" standard so narrowly as to allow individuals and groups essentially to evade even the FECA's reporting and disclosure requirements.(24) In other words, not only do individuals and groups face no caps on independent expenditures, but by merely changing the wording of an advertisement that otherwise would be considered express advocacy, they are permitted by some courts to make massive expenditures without even reporting or disclosing such spending.(25)

The First Circuit has decided that the danger of chilling important political speech requires a very narrow interpretation of the express advocacy standard. Seizing on the language of the Buckley footnote,(26) the First Circuit adopted a strict, literal interpretation of the express advocacy standard, which looks only to the four corners of the communication to see if the "magic words," such as "vote for" or "vote against," were used.(27) If these magic words are not included, the communication does not constitute express advocacy and thus no reporting and disclosure can be required.(28)

The FEC recently adopted a more context-based approach(29) that codifies an earlier Ninth Circuit decision allowing the FEC to regulate a broader spectrum of campaign-related speech.(30) The FEC and the Ninth Circuit look to the communication as a whole and consider its timing and other "external factors that contribute to a complete understanding of [the] speech" to determine whether the communication is so clearly unambiguous that reasonable people could not differ as to its meaning, that is, whether the communication advocates for or against a clearly identified candidate.(31) This approach, the FEC and the Ninth Circuit contend, avoids the rigidity of the "magic words" standard and therefore potentially covers a broader and more appropriate range of speech.

To appreciate the difference in these two approaches, consider two hypothetical examples of independent expenditure advertising seen during a given campaign season. In the first example, the National Rifle Association(32) runs an advertisement on November 2, three days before the general election. The television screen opens with a large caption "Don't let Bill do it to us again!" against a screen-size picture of President Clinton. The advertisement makes several comments about the President's campaign tactics and ends with a rousing message: "We have a right to own guns to protect ourselves. We have an opportunity three days from now to stop Bill Clinton from taking them away from us." The second hypothetical advertisement is exactly the same, but ends instead with the message, "Vote Against Bill Clinton."

Both advertisements would be covered by the new FEC regulations because, based on their context, they unambiguously advocate the defeat of a clearly identified candidate. However, because the first advertisement does not contain any of the magic words encouraging a voter to "vote against" President Clinton, the First Circuit would rule that this advertisement fails to clearly cross the threshold that divides issue advocacy (here, the right to own guns) from express advocacy (here, advocating the defeat of candidate Clinton).(33) Thus, the First Circuit would hold that it falls beyond the reach of the FEC's authority to regulate elections.

This Note contends that there is no justifiable distinction between advertisements like the two examples above: both should be construed as independent expenditures that can be regulated through reporting and disclosure requirements by the FEC. This Note therefore argues that the contextual approach of the new FEC regulations -- fully complies with Buckley's definition of express advocacy. The contextual approach adequately protects the First Amendment rights of the parties involved while allowing the government to meet its compelling interests in fully informing the electorate and rooting out and deterring abuse in the electoral process.

In order to demonstrate the constitutionality of the new FEC regulations, it is important to have a clear understanding of the rationale for the express advocacy standard. To this end, Part I describes the Supreme Court's development of the standard in Buckley v. Valeo and its progeny. It then details the resulting split between the federal circuits regarding the modern definition of "express advocacy" and the constitutionality of the FEC's new regulations. Part II argues that the new regulations comply with Buckley and its progeny by balancing the First Amendment rights of individuals and groups against the compelling governmental interest in regulating independent expenditures and corporate contributions in federal elections.

1. THE DEVELOPMENT OF THE EXPRESS ADVOCACY STANDARD

   In 1973, in the wake of the Watergate scandal and in response to the actual and perceived corrupting influence of money in elections, Congress passed its most comprehensive attempt to regulate the role of money in federal elections by amending the FECA.(34) In addition to capping direct contributions(35) and independent expenditures,(36) the amendments required candidates, individuals, and groups to disclose both direct contributions(37) and independent expenditures to the FEC. For independent expenditures, individuals or groups making such expenditures must register with the FEC and periodically disclose in their reports to the FEC the expenditures they have made.(38)

   The Supreme Court in Buckley considered the constitutionality of these provisions. The Court first established that money spent in...