t c? 

'L 

FEDERAL E ECTJON CO 

WASHINGTON, D.C. 20463 

MEMORANDUM 

TO: The Commissioners 

Staff Director 

Deputy Staff Dlrector 

General Counsel 

IIMJSSIOP 

n 

FROM: 

DATE: November 7,2001 

Office of the Commission Secreta 

SUBJECT: Statement For The Record for MUR 4624 . 

N. :' nJ Attached is a copy of the Statement For The Record for 

MUR 4624 signed by Commissioner Bradley A. Smith. 

This was received in the Commission Secretary's Office on 

Wednesdav. November 7,2001 at 3:26 mm. 

cc: Vincent J. Convery, Jr. 

Information. Divlslon 

Press Office 

Public Disclosure 

Attachment 
P 

FEDERAL ELECTION COMMISSION 

WASHINGTON, D.C. 20463 

.. 

In the Matter of 1 

1 

1 MUR 4624 

1 

The Coalition ‘1 

National Republican Congressional Committee, el rrl. ) 

STATEMENT FOR THE RECORD 

COMMISSIONER BRADLEY A. SMITH 

I. 

I voted in favor of the Gend Counsel’s Report of April 20,2001 recommending 

that the fiie be closed. However, while some commissioners seem to feel this .case 

indicates that the Commission’s rules regarding coordination and political committees do 

not sufficiently restrain political speech and participation,’ I believe.that this case is 

illustrative of the need for still further protections for Ameiicans wishing to participate in 

the political life of our nation. In particular, limiting the Commission’s reach in cases 

.involving allegations of coordinated public communications to communications 

involving express advocacy: is, in my view, sound interpretation of both the statute and 

judicial precedent, hd is required by the Constitution. 

’ See Statement of Reasons of Commissioner Scott E. Thomas andChaimm Danny L. McDonald, 

(hereinafiex “ThomadMcDonald Statement”); Statement for the Record of Commissioner Karl J. Sandslrom 

The tenn “express advocacy’’ stems hm the Supreme Court’s decision in BucMey v. Valeo, 424 U.S. 1 

(1976). ‘In that case, the court limited the reach of sections 608(e)( 1) and 434(e) of the FEU to those 

communications that “in express terms advocate the election or defeat of a clearly identified candidate,“ id. 

. at 44, then held that a cap on section 608(e)(l) expenditures, even as narrowed, was unconstitutional. As 

examples of express advocacy, the Court offered such terms as “‘vote for,’ ‘elect,’ ‘support,’ ‘cast your 

ballot for,’ ‘Smith for Congress,’ ‘vote against,’. ‘defiat,’ ‘reject.”’ BucMey at 44, n.52. This limitation on 

the reach of regulationhas been reaffirmed by the Supreme Court, see Federul Election Cornrnirsion v. 

Mussachwerrs Cirhm for Lve, 479 U.S. 238 (1986) (hereinafter “MWL”), and countless lower courts, see 

infivl note 27. The question in this case is whether or not this limitation applies to communications that are 

coordinated with the campaign. 

(llereiaefter “Sandstrom Statement”). 
The broad facts and procedure of this case are substantially as put forth in the 

Statement of Reasons filed by Commissioner Thomas and Chairman M~Donald.~ In 

March of 1997, the Democratic National Committee (“DNC”) filed a complaint alleging 

that various Republican Party aliated committees, and a large number of business and 

trade associations supportive of the general agenda of Republicans in Congress, had in 

1996 committed massive violations of the Federal Election Campaign Act of 1971, as 

amended (“FBCA” or “the Act”). This triggered a four-year investigation of more than 

60 committees and organizations plus several individual respondents. The Commission’s 

attorneys took nine depositions, collected thousands of pages of documents, and 

interviewed numerous other witnesses, before this case came to its mercifil end? 

Despite the fact that the Commission has now found no violations in this case, I 

strongly suspect that the original complainant, the Democratic National Committee, 

considers its complaint to have been a success. The complaint undoubtedly forced their 

political opponents to spend hundreds of thousands, if not millions of dollars in legal 

fees, and to devote countless hours of sm, candidate, and executive time to responding 

to discovery and handling legal matters. Despite our finding that their activities were not 

coordinated and so did not violate the Act, I strongly suspect that the huge costs imposed 

by the investigation will discourage similar participation by these and other groups in the ’ 

fiture.5 

We cannot fault the complainant DNC for pursuing its political goals through the 

legal tools made available to it, but nor can we on the Commission blind ourselves to the 

fact that the substantial majority of the complaints filed with the Commission are filed by 

political opponents of those they name as respondents. These complaints are usually filed 

=.much to harass, annoy, chill, and dissuade their opponents hm speaking as to 

vindicate any public interest in preventing “corruption or the app&ance of corruption.’“ 

This knowledge makes it particularly important that we be sensitive to the possibility that 

See ThomaslMcDonald Statement at 2-4. ‘ I joined the Commission on June 26,2000, at which time the case had been going on for over three years. 

Two weeks later, on July 1 1,2000, I joined in a 5-0 Commission vote in favor of an additional round of 

discovery. I now recognize the error of that vote, and, for the reasons stated below, will.no longer lend my 

vote to any matter that prolongs the legal agony of citizens and groups whose cdnnrnunications do not 

contain express advocacy. 

Several of the Respondents in this MUR have also expressed their belief that the General Counsel’s 

Report of April .20,2001, while ultimately recommending that no action be taken against them, dirly 

maligns their actions and insinuates illegal conduct. See Letter of Jan Witold Baran to Commission, June 

13,2001; Letter ofBenjamin L. Ginsberg, et al. to Acting Gened Counsel Lois G. Lemer, July 5,2001: I 

share the concerns of kse respondents that reports to the Commission ought not be used to impugn the 

activities and motives of respondents when the evidence does not support continuing with the case or when 

no violation is found, and I believe that this type of tone will Mer discourage individuals and groups hm 

garticipating in political activity in the future. 

The phe “corruption or appearance of conuption” comes hm Buckley v. VuZeo, 424 U.S. 1,25 (1976), 

and serves as the constitutionally valid rationale for regulating political speech in the form of campaign 

contributions and expenditures. Although this case involves the DNC complaining about Republican 

candidates and organizations and their allies, it goes without saying that Republicans file charges against 

Democrats. 

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OLE interpretations of the Act can, and sometimes do, chill what is and ought to be 

constitutionally protected political speech. 

8 I’ 

In this case, the Office of General Counsel concluded that it could not prove that 

the activities and disbursements of the respondents were coordinated with candidates and 

December. See 1 1 C.F.R. 6 100.23. ‘These coordination rules were themselves a salutary 

effort to address problems ofvagueness and overbreadth in the Commission’s prior 

practices, which lacked any clear definition of “cooperation, consultation, or concert,” see 

2 U.S.C. 0 441a(a)(7)(B)(i), and provided inadequate guidance to groups and individuals 

as to what activities would be deemed “coordinated” under the Act. See Federal Election 

Commission v. Christian Coalition. 52 F. Supp.2d 45 @.D.C. 1999); see also @on v. 

Federal Election Commission, 114 F.3d 1309 (1‘ Cir. 1997). Groups and individuals 

who petition the government, contact their elected representatives, or perhaps are fiiends 

or acquaintices of representatives or Congressional staffers, former staffers, or fiends 

and acquaintances of the same, need guidance on what conduct falls short of coordination 

without concluding that the only clear way to avoid liability is to reMn hm making 

independent expendi.tures. The conduct standard implemented by the new coordination 

rule is a vast improvement over the past practices of the Commission, providing muchneeded guidance to makers of indeperident expenditures? 

’ 

. committees pursuant to the regulations promulgated by the Commission only last 

. 

Unfortunately, in promulgating 1 1 C.F.R. 0 100.23, the Commission provided 

scant guidance to groups engaged in issue advocacy! by not .addressing the question of 

whether a content standard, as well as a conduct standard, would be required before 

coordinated public communications would be subject to the rule? This failure is 

’ Commissioners Thomas and McDonald, who voted against adoption of the reNations, complain that the 

regulations are unduly strict. ThomadMcDonald Statement at 4-14. For reasons I state below, I believe 

they comply with the Act and that OUT old practices exceeded the swpe of both the Act and the hti@tion. 

Commissioners Thomas and McDonald also argue that the Commission has thwarted the will of the Skte, 

ThomadMcDonald Statement at 17, by impbtiug these regulations in the wake of the Senate’s passage 

of S.27, the McCain-Feingold bill. Section 214 of S. 27 would effectively repeal the coordination rule of 

11 C.F.R. 100.23: We are not, of cme, enmted with implementing the will of the Senate, at least not 

until such time as the House of Representatives manifests the same “will” and the President has either 

signed the bill, allowed it to become law without his signature, or had his veto over-ridden by the necessary 

two-thirds majority of each house. See generrrll, INS v. Clradlru, 462 U.S. 919 (1 983). I note that 

although the Senate received the proposed fml rule on December 7,2000, it did not “disapprove” the rule 

by resolution within thirty legislative days of its receipt, as it was he to do pursuant to 2 U.S.C. 0 438(d). ’ As terms of art, “independent expenditures” expressly advocate the election or defeat of a candidate. 

Though not limited in amount, thj are subject to other provisions of the Act. “Issue advocacy,” on the 

other hand, is political discussion that does not contain explicit words of advocacy of election or defeat, and 

so has been protected by the Supreme Court hm regulation. See Buckley, 424 U.S. at 44, n.52; MWL. 

479 U.S. at 249. The issue here is whether an issue ad, if coordinated with a candidate, becomes subject to 

the Act. 

In the Explanation and Justification of the fdl rule, the Commission claims that it is “addressing the 

constitutional concerns raised in BucAIey by creating a saleherbor for issue discusSion.” See Notice #2000- 

21, Final Rule on General Public Political Communications Coordinated with Candidates and Party 

Committees; Independent Expenditures, 65 Fed. Reg. 76138,76141 @a. 7,2000). This statement is true 

but applies only with respect to 1 1 CFR section I00.23(d), which makes clear that a candidate’s response to 

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an inquiry regarding her position on issues will not sUmce to establish coordiniition. Zd. otherwise, the 

Commission has not provided an adequate safeharbor for issue discussion, for it has not, as of yet, 

determined the content standard necessary for regulating coordinated communications. See id., at 76141 

('The Commission is not adopting any content standard as part of these rules at this tinre.")(exnphasis 

added). The Commissionas conscious decision not to address a content standard should not be read as a 

presumption that the Cormnission has made a final decision against requiring a content standard, however, 

for as the Explanation & Justification also explains, "the Commission may revisit the issue of a content 

standard for all coordinated communications when it considers candidate-party coordination." 65 Fed Reg. 

at 76141. 

important, because as this case demonstrates, the conduct standard alone does not provide 

an adequately bright line to prevent the specter of investigation and litigation hm 

chilling constitutionally protected speech. When a person decides to make independent 

political expenditures, he opens himself up to two potential burdens under the Act. The 

first burden is to report those independent expenditures in excess of $250.00. See 2 

U.S.C. §.434(c). The second is to defend against allegations that the advocqcy.was 

somehow authorized by or coordinated with a candidate which, if true, would lead to. still 

' greater limits on the pkn's political activity. See 2 U;S.C. 0 43 1 (1 7). Respondents can 

spend substantial sums defending themselves against such allegations,. and this possibility 

will cause many speakers to. avoid engaging in what ought to be constitutionally protected 

speech. Thus, a bright line test is needed. A content test-express advocacy-provides 

such a bright line. If a financier of general public communications is not willing to 

defmil against charges that his speech was authorized by a candidate, or prefers not to 

disclose the sources of his funding, see e.g. NAACP v. Alabama, 357 U.S. 449 (1958), 

Mdntyre v. Ohio Elections Commission, 514 U.S. 334 (1995), he can simply delete hm 

his message words of express advocacy and speak on any other topic of his choosing. If 

he is investigated nonetheless, he can be assured that the investigation will be short, nonintrusive, and inexpensive, merely by demonstrating the absence of express advocacy in 

his communications. Absent a content standard, however, no such immediate defense is 

available if the Commission launches an investigation into the alleged coordination with 

candidates. Further, such an investigation is likely to be highly intrusive, as is 

demonstrated by this case and another recent high-profile matter eventually resulting in 

no finding of a violation, MUR 4291 (American Federation of Labor and Congress of 

Industrial Organizations). The investigation can include extensive rifling through the 

respondents' files, public revelations of intemal plans and strategies, depositions of group 

leaders, and the like. Such allegations and investigations may be avoided only by ' 

completely avoiding'all contact with candidates, because even minimal contact could 

bigger a credible allegation. Oddly, the less immediately obvious evidence there is that 

the conduct would me& the standard of 11 C.F.R. 0 100.23, the more intrusive the 

investigation is likely to be, as the Commission searches for evidence of the veracity of 

the complaint. The effect of the rule becomes essentially the same as that of the rule 

struck down in Clipon; "it treads heavily upon the right of citizens, individual or 

corporate, to confer and discuss public matters with their legislative representatives or 

candidates for such office," and is therefore, "patently offensive to the First Amendment." 

114 F.3d 1309, 1314 (1"Cir. 1997), cert. denied, 522 U.S. 1108 (1998). 

. 

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With that in mind, I believe that the Act, the Constitution, judicial peedent, and 

sound public policy require us to limit our enforcement to cases in which 

communications, whether or not coordinated with a candidate, expressly advocate the 

election or defeat of candidates for federal office. Failure to include such a content 

standard has and will have a chilling effect on political participation and speech. 

11. 

Institutional competence and prudence requires that executive agencies charged 

with enforcing the law, even more than the courts, ought to adhere to the general precept 

of not unnecessarily deciding Constitutional issues. Thus I first analyze our authority 

under the statute. I believe that the statute, as intqreted by the Supreme Court, does not 

authorize us to regulate issue advocacy, even when such advocacy is coordinated with a 

candidate. 

Corporate expenditures and contributions are prohibited under section 441b of the 

Act. The phrase “contribution or expenditure” in section 441b is defined separately in 2 

U.S.C. section 441 b(b)(2).” Nevertheless, in Federal Election Commission v. 

Massachusetts Citizens for Lve, 479 U.S. 238 (1986)(“MCFL”’), the United States . 

Supreme Court looked to the general definitions section of the Act, 2 U.S.C. section 43 1, 

to define the scope of the term “expenditure” as used in section 441b. See 479 U.S. at 

245-46. The MCFL Court also held that “an expenditure must constitute ‘express 

advocacy’ in order to be subject to the prohibition of 441 b.”. Id. at 249. There is no 

reason to believe that section 43 1, the general definitions section, is not as applicable in 

construing the term “contribution” in section 441b as it is in construing the term 

“expenditure” in 441b. Section 43 1(8)(B)(vi) states that the tem “contribution” does not 

include “any payment made or obligation incurred by a corporation or labor don which, . 

under section 441b(b) of this title, would not [first] constitute ap expenditure by such 

detmined that the tenn “expenditure,” as used in section 441b, is limited to 

communications containing express advocacy, and because the Coalition did not engage ’ 

in express advocacy, the. corporate respondents in this MUR did not make prohibited 

“expenditures” under section 441 b. They therefore cannot have made prohibited in-kind 

“contributions” under section 441b, by way of section 441a(a)(7)(B)(i). Likewise, the 

committees involved in this MUR could not have accepted in-kind corporate 

contributions hm the Coalition in violation of 2 U.S.C. section 441b. 

. 

’ 

corporation or labor organization.” 2 U.S.C. 0 431(8)(B)(vi). Because the Court has .. 

lo 2 U.S.C. 5 441b(b)(2) provides as follows: . 

For the purposes of this section . . . the tenn ‘contribution or expenditure’ shall include 

any direct or indirect payment, distribution, loan, advance, deposit or gift of money or 

any other services, or anything of value (except a loan of mney by a national or State 

bank made in accordance with the applicable banking laws and regulations in the ardinary 

course of business) to any candidate, campaign committee, or political party or 

organization, in connection with any election to any of the offices referred to in this 

section. . . . 

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Nor do I believe that non-corporate respondents violate the Act through . 

coordinated issue advocacy. In.BucMq, the Supreme Court held that the phrase “‘for the 

purpose of influencing’ an election or nomination,” appearing in the defition of 

“expenditure” at 2 U.S.C. section 431(9)(A)(i), limited the meaning of “expenditure” to 

communications containing express advocacy, at least when, as in this case, the speaker 

was not a political committee. 424 U.S. 1 at 79-80. After.the Buckley decision was 

handed down, Congress, filly aware.of the Coufs restrictive interpretation of the term 

“expenditure” in section 431(9)(A)(i), used the term “expendituk” in amending section 

441a(a)(7)(B)(i). Section 441a(a)(7)(B)(i) provides that ‘‘expenditures made by any 

person in cooperation, consultation, or concert with . . . a candidate . . . shall be wnsidered 

to be a contribution to such candidate.” (emphasis added). Congress’s post-hckiey use of 

the t& “expenditure”-where the statutory definition of the tenn as interpreted by the 

Supreme Court is limited to cornminications containing words of express advocacy - 

indicates that even coordinated public communications must contain express advocacy 

before they can be transformed into regulable in-kind contributions.” 

Indeed, Congress has responded to the courts on this topic before. Mer Budq, 

Congress limited the disclaimer provisions to apply specifically to express advocacy 

communications, 2 U.S.C. 6 441d(a), even where those communications are coordinated 

with a candidate.” If Congress had intended fbr coordinated issue advocacy 

commur,ications to be within the jurisdiction of the FECA, it surely would have required 

a disclaimer for such communications. 

Finally, that the Act as currently written requires express advocacy before 

coordinated public communications are subject to its terms is evidenced by the fact that, 

in pending legislation, the Senate has approved aq amendment to do away with any 

requirement of express advocacy in the coordination provisions of the Act.I3 

” Additionally, section 431(8)(A)(i) of the Act limits the definition of “contriiution”.to any gi& etc. ‘hade 

... for the purpose of influencing” a federal election. 2 U.S.C. 8 431(8)(A)(i). This is the sam statutory ’ 

phrase as is used in the definition of “expenditure,” 2 U.S.C. 8 431(9)(A)(i), and which was construed by 

the Buckley Court to require a showing of express advocacy. The Buckley Court refmd to 2 U.S.C. 8 

43 1(8)(A)(i) and 2 U.S.C. 8 43 1(9)(A)(i) as ”parallel provisions.” Budley at 77. 

44 1 d(aX2) provides in pertiuent part: 

See Pub. L. No. 94-283,90 Stat. 497, May 11,1976 (amending 2 U.S.C. 0 441d). 2 U.S.C. 6 

Whenever any person makes an expenditure for the purpose of financing communications 

expressly advocating the election or defeat of a clearly identified candidate‘. . . such . communication . . . (2) if paid for by other persons but authorized by a candidate, an 

authorized political committee of a candidate, or its agents, shall clearly state that the 

communication is paid for by such other persons and authorized by such authorkd 

politicca~ committee. 

Prior to Buckley, the Second Circuit had also held that issue advocacy could not be subject to the 

disclosure provisions of the FECA, United States v. National Committee for Impeachment, 469 

U.S. 1135 (2d Cir. 1972). 

See S. 27, Sec. 214,107th Congress, 1st Session (commonly known as the “McCain-Feingold” bill) 

(amndiag the Act’s dehnition of “conixibution” to include “any coordinated expenditure or other 

disbursement made by any person in connection with a candidate’s campaign, regardless of whether the 

expenditure or disbursement is a communication that contains express advocacy.”) 

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Given that the respondents in this case did not engage in express advocacy, this 

should have ended the matter in the spring of 1997, without the extensive investigation 

that followed. The Commission may only pursue violations of the FECA. See 2 U.S.C. 0 

437g(a)(2). For me this is adequate to dismiss the case.14 However, recognizing that the 

statute is not a model of clarity in this regard, and in light of the apparent certainty of 

other commissioners that the Act at least allows for regulation of coordinated issue 

advocacy, I believe it worthwhile to set forth more fully why it is both wise policy, and 

constitutionally required, to limit our enforcement efforts to communications including 

express advocacy. 

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III. A. 

The starting point for any analysis of the constitutional and policy issues involved 

in enforcing the FECA is the recognition that “[tlhe Act’s contribution and expenditure 

limitations operate in an area of the most fundamental First Amendment activities.” 

BucRley, 424 U.S. at 14. With that in mind, a key concern of the Supreme Court’s 

BucRley decision was to prevent the Act hm having a “chillhf effect on speech 

pertaining to public issues and affairs. See 424 U.S. at 41, n. 47. The Court noted that: 

vague laws may not only ‘trap the innocent by not proiiding fair warning‘ 

or foster ‘arbitrary and discriminatory application’ but also operate to 

inhibit protected expression by inducing ‘citizens to steer far wider of the 

unlawful zone.. . than if the boundaries of the forbidden areas were clehly 

marked.’ ‘Because First Amendment hedoms need breathing space to 

survive, government may regulate in the area only with narrow 

specificity. ’ 

424 U.S. at 41, n. 48 (citations omitted). 

In Buckley, the Supreme Court accepted contribution limits as constitutionally 

permissible, but struck down limits on expenditures as violations of the First 

Amendment. There were three major reasons for providing greater protection to 

expenditures than to contributions. First, the Court noted that limits on contributions 

were a lesser burden on speech because a contribution, unlike an expenditure for public 

communications, did not “communicate the underlying basis for the support.” 424 U.S. at 

21. Second, limits on expenditures “reduce [I the quantity of expression by restricting the 

. number of issues discussed, the depth of their exploration, and the size of the audience 

reached.”Id. at 19: Limits on contributions to candidates, on the other hand, do not 

necessarily have the effect of materially reducing political discussion because they “leave 

the contributor he to become a member of any political association” and permit such 

a&ociations “to aggregate large sums of money to promote effective advocacy.” Id. at 

22. Finally, limits on contributions “focus [I precisely on the problem of.. . 

“ The Connnission also made ‘teason to believe” fmdings under section 44 1 d for failure to make 

disclaimers. As section 44 1 d, by its express terms, only applies to “communications expressly advocating 

election or defeat,” this charge could have been easily dismissed as well. 

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corruption.. ..” By contrast, limitations on expenditures raise the concexm of vagueness 

that cause “citizens to steer far and wide of the unlawll .zone.” Id. at 41, n. 48. 

Thus, in analyzing section 608(e)( 1) of the Act, which provided tlpt ‘‘[nlo. person 

may make any expenditure ... relative to a clearly identified candidate during a calendar 

year which . . . exceeds $1,000,’’ the Court held that ‘‘the use of so indefinite a phrase as 

‘relative to’ a candidate fails to clearly mafk the boundary between permissible and 

impermissible speech.” Id. at 41. It continued: 

The constitutional deficiencies [of vagueness] can be avoided only by 

reading §608(e)( 1) as limited to communications that include explicit 

words of advocacy of election or defeat of a candidate. . . . [Flunds spent to 

propagate one’s views on issues without expressly calling for a candidate’s 

election or defeat are thus not covered.. .. . [an order to preserve the 

provhion against invalidation on vagueness grounds, §608(e)( 1) must be 

construed to apply only to expenditures for communications that in 

express tms advocate the election or defeat of a clearly identified 

candidate for federal office. 

Buckley at 43-44. 

These same concems arose when the Co.urt considered the Act’s disclosure 

provisions. Once again, the Court could have regulated issue advocacy, but did not. 

Rather, the Court chose again to give the term ‘expenditure’ a limiting construction. The 

court stated: 

[Tlhe [disclosure] provision raises serious problems of vagueness, . . . ’ 

[that] may deter those who seek to ex-ise protected Fifst Amendment 

rights. Section 434(e) applies to ‘[elvery person ... who makes 

contributions or expenditures.’ ‘Contributions’ and ‘expeditures’ are 

defined ... in terms of money or other valuable assets ‘for the purpose of 

influmcing’ the nomination or election of candidates for federal office. It ’ 

is the ambiguity’of this phrase that poses constitutional problems. 

.. 

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There is no legislative history to guide us in determining the scope of the 

critical phrase ‘for the purpose of ... influencing’. . .. Where the 

constitutional requirement of definiteness is at stake, we have the further 

obligation to construe the statute, if that can be dqne consistent with the 

legislative purpose, to avoid the shoals of vagueness. 

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When we attempt to define ‘expenditure’ ... we encounter line-drawing 

problems of the sort we faced in §608(e)( 1). Although the phrase ‘for the 

purpose of.. . influencing’ ail election or nomination, differs hm the 

language used in §608(e)(l), it shares the same potential for encompassing 

both issue discussion and advocacy of a political result. 

. Id. at 76-79. (Citations omitted). The Court womed that the “general requirement that 

‘political committees’ and candidates disclose their ‘expenditures could raise similar 

vagueness problems, for ‘political committee’ is defined only in terms of the amount of 

annual ‘contributions’ and ‘expenditures,’ and could be interpreted to reach pups 

engaged purely in issue discussion.” Id. at 79. However, because the vagueness 

problems associated with.the tem “political co&ittee,’ had already been largely 

resolved due to narrow readings of the statute by lower courts, it was not the effect upon 

groups defined as “political committees” under the Act that particularly concerned the 

court. 

The Court was more concerned about the effects that a vague and overbroad law 

could have u on the otherwise lawful First Amendment activities ofother groups and 

individuals.” The Court, therefore, narrowed the term “for the purpose of influencing” to ’ 

save the definition of the terms “expenditure” and “wntribution” hm being 

unconstitutionally overbroad: “To insure that the reach of §434(e) is not impermissibly 

broad, we construe “expenditure” ... in the same way we construed the texms of §608(e)- 

to reach only funds used for communications that expressly advocate the election or 

defeat of a clearly identified candidate.” Id. at 80. Thus, the Court concluded: 

. [Section] 434(e) as construed imposes independent reporting requikments ’ 

on individuals and groups only in the following circumstances: (1) when 

they make contributions earmarked for political purposes or authorized or 

requested by a candidate ... to some person other than a candidate or 

political committee, and (2) when they make expenditures fbr 

communications that expressly advocate the election or defeat of a clearly 

identified candidate. 

*** 

As [constitutionally] narrowed, §434(e), like §608(e)(l), does not reach all 

partisan discussion for it only requires disclosure of those expenditures 

. that expressly advocate a particular election result. 

Bucklqr at 80. 

In reviewing the BuckZey decision then, we see that each time the Bucklq, Court 

considered the definition of “expenditure,” it mwly interpreted the term to avoid 

’ Is See Bucklqy at 79. Our new coordination regulations deal specifically with groups and individuals, 

exempting party committees and authorized committees. 65 Fed Reg. 76141-76142. 

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vagueness or overbreadth.’6 Concerns of vagueness and overbreadth were fbwost in the 

Buckley Court’s thinking in interpreting all aspects of the FECA. Most importantly, it . found that the qualifling phrase “for the purpose of influencing,” which is also part of the 

Act’s definition of “contribution,” 2 U.S.C. 8 431(8)(A)(i), could be saved. hm 

vagueness problems only by construing it as applying to ‘tvords that in express terms 

’ 

’ advocate . . . election or defeat.” 

The ~uc~ley court referenced Coordinated communications only in passing. ~n 

arguing BucWey, the parties defending the Act contended that its limitation on 

independent expenditures was necessary to prevent would-be contributors from avoiding 

the contribution limitations of the Act by paying directly for media advertisements or 

other portions of the candidate’s campaign activities. The Court addressed this wncem 

with a brief statement that “controlled or coordinated expenditures are treated as 

contributions. rather than expenditures under the Act” under Section 608(c)(2)@), id. at 

46 (emphasis added), noting that “§608(e)( 1) does not apply to expenditures ‘on behalf of 

a candidate’ within the meaning of §608(c)(2)@). The latter subsection provides that 

expenditures ‘authorized or requested by the candidate’ ... zke to be treated as 

expenditures of the candidate and contributions by the person making the expenditure.” 

Id. at 46, n.53. 

. 

What the Court did not specifically address is whether it intended the same 

limiting construction of the term ‘‘expenditure” it had applied to sections 608(ej(l) and 

434(e) to’apply to section 608(c)(2)@). Clearly the Court did not intend for independent 

issue advocacy to be regulated, but one might argue that in holding that authorized or . 

requested “expenditures” are “contributions” under the Act, the Court meant to include 

coordinated issue advocacy. However, the Buckley Court’s example of a coordinated 

“expenditure” that would be treated as a contribution, itself taken hm the legislative 

history of the Act, is an express advocacy ad. . 

[A] person might purchase billboard advertisements endorsing a 

candidate .... [rJf the advertisement was placed in cooperation with the 

candidate’s camiaign organization, then the amount would constitute a 

gifi by the supporter and an expenditure by the candidatejust as if there 

had been a direct contribution enabling the candidate to place the 

advertisement himself. 

BucMey at 46, n. 53 (emphasis added). Nothing suggests that the Court did not intend to 

extend to section 608(c) the narrow definition of “expenditure” it had given the term in 

section 608(e). Of course, it is possible that the Court never considered that a candidate 

would requkt or authorize “media advertisements” that did not expressly advocate the 

election or defeat of one candidate or another. After all, the legal distinction between 

. 

“See a&o Federal Election Commission v. Survival Education Fund, 65 F.3d 285,294-95 (2d Cir. 1995) ’ 

(holding that the phrase “contributions . . . earmarked for political purposes” must, for reasons of vagueness, 

also be limited to contriiutions carmarked for communications that expressly advocate the election or 

defeat of candidates for office). 

10 
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r 

express ads and issue ads did not exist before BucMey, so then would have been no 

reason for a campaign to request an ad that did not expressly advocate election or defeat. 

Still, the most probable intqretations of Buckley are that it either limited the term 

“expenditure” in section 608(c)(2)(B) to disbursements for express advocacy, or simply 

did not address the issue. That the Court intended to find coordinated issue ads to be 

covered’by the Act seems the least probable interpretation. 

The question we face is whether, in light of Congress’s actions, the holdings in 

BucWey and its progeny, the Constitutional concerns raised by the Supreme Court and 

lower courts, and our position as officials of the executive branch who have 

independently taken an oath to uphold the Constit~tion,’~ we can or should interpret the 

Act as reaiching coordinated spending for issue advocacy communications. 

In considering the question, I note first that each of the Constitutional concerns 

raised by the Buckley Court as ieasons for providing greater protection to expenditures 

than to contributions is present in the context of coordinated issue advocacy 

disbursements. Fbt, the coordinated issue advocacy disbursements do more than merely 

“serve as a general expression of support;” they do in fact “communicate the underlying 

basis for the support.” See BuckZey, 424 U.S. at 21. Second, restrictions on coordinated 

issue advocacy spending are, as a practical matter, likely to lead to a “reduc[tion] in the 

quantity of expression by restricting the number of issues discussed.” See id. at 19. 

Arguably, of come, these pups might simply run their ads independently, so that no 

such speech reduction would result. As we how, however, pups regularly work with 

members of Congress to promote shared agendas. As the Buckley Court recognized, 

“[d]iscussions of those issues, and as well more positive’efforts to influence public 

opinion on them, tend naturally and inexorably to exert some influence on voting at 

elections.” Id. at 43, n. 50. If the Act applies to coordinated issue advocacy, many groups 

will be unable both to work with elected representatives and to run ads attempting to 

influence public opinion on issues of mutual interest. In short, the groups will be asked to 

surrender either their rights of he speech and association or their rights of speech and to 

petition for redress. As already noted, the threat of investigation is itself often sufficient 

to chill speech. It is exactly our job, as the administrative agency with expertise in 

enforcing the Act, to recognize the practical effats of differing interpretations of the Act 

and to set policy accordingly. 

Most importantly, efforts to regulate coordinated issue advocacy raise exactly the 

vagueness concerns at the heart of Buckley. For example, if Common Cause, having 

coordinated its legislative efforts with Senator McCain, were to also run advertisements 

in support of its agenda that mentioned the Senator, whether or not their ads would 

violate the Act would depend upon whether or not the Commission believed that they 

” Unlike some of my colleegucs, I do not interpret that oath to mean that we can fulfill our constitutional 

obligations simply by ignoring constitutional considerations until and unless we are bound by judicial 

ruling. Rather, as representatives of a cocqual branch of government, OUT obligation requires us to 

consider the constitutional implications of our actions em when we have not beenbound by judicial 

decisions. 

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‘were “for the purpose of influencing an election.” This is the exact standard that the 

Supreme Corn. found, without .more, to be unacceptably vague even in tenus of the less 

burdensome disclosure provisions of the Act. 

Because of the resulting vagueness, see BucMey, 424 U.S. at 41, n.’ 48, we can 

anticipate that groups will, in the fbture, “‘steer fsr wider of the unlawfid zone’. . .than if 

the boundaries of the forbidden areas were clearly marked.” The present case illustrates 

that only too well. The enormous costs, imposition, ‘and length of the investigation that 

has occurred in this case suggests that at least some of the more than 60 respondents 

involved, and who knows how many other groups and individuals that have witnessed the 

debacle, will “s-’ fhr wide” rather than risk a lengthy investigation, even if that 

investigation does ultimately lead to a finding of “no probable cause.”’8 

. 

At one time, a majority of the Commission seems to have recognized this 

vagueness pbblem. On June 24,1999, Commissioners Wold, Maso% and Sandstrom, . 

joined by then Commissioner Elli~tt,’~ issued a statement of reasons rejecting the 

enforcement of coordination cases under a vague, “electioneering message” content 

standard?’ The Conpnission majority at that time correctly concluded that the vague 

‘‘electioneering message” standard offered no guideposts for fbe discussion, even in 

cases where such discussion was coordinated or presumably coordinated with a candidate, 

writing: 

The vagueness and overbreadth problems of the “electioneering message” 

and “relative to” standards are thus two sides of the same countdeit coin. 

They are vague because it is not clear when they encompass issue 

discussion and not candidate advocacy. They are overbroad because, . 

given ‘the nature of campaigning, they will inevitably encompass both. ‘For 

the same substantive reasons that the Supreme Court held the “relative to” 

standard in the FECA to be unconstitutional, the Commission may not 

employ the “electioneering message” standard. Even in the context of 

coordinated, or presumably coordinated, communications in which the 

“electioneering message” test has generally been proposed (see 1 1 C.F.R. ‘ 

0 1 14.49~)(5)(ii)c)(5)(ii)@)(E) (regulation of voter guides)), the 

’ Commission may not ignore these constitutional requirements. . 

.. . 

Statement of Reasons of Vice Chairman Danyl R. Wold, and Commissioners Lee Ann 

Elliott, David M. Mason, and Karl J. Sandstrom on the Audits of “Dole for President 

Committee, Inc.” (Primary), “ClintodGore ’96 Primary Committee, Inc.,” “Dole/Kemp 

’96, inc.” (General), DolelKemp ’96 Compliance Committeei, Inc.” (General), 

’* Everyom at this Commission is well aware of a favorite saying of the practicing campaign finance law 

bar: ‘The process is the punishmen t.” 

I did not join the ConnnisSion until June of 2000. 

This appears to have been the standard used by the Commission in deciding whether or not coordinated 

issue advocacy was subject to the Act prior to adoption of 11 CFR 0 100.23. See Advisory Opinion 1985- 

14 [ 1976-1990 Transfer Binder] Fed. Elec. Camp. Fin. Guide (CCH), 5819 at 11 185. ’ 

12 
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“Clinton/Gore ’96 General Election Legal and Compliance Fund” at 6, (June 24,1999) 

(emphasis added). 

Shortly thereafter, the Federal District Court for the District of Columbia decided 

Federal Election Commission v. Christian Coalition, 52 F. Supp.2d 45 @. D.C. 1999). 

That decision held that coprate expenditures for coordinated issue ads weav subject to 

the contribution prohibitions of 2 U.S.C. section 441b.2’ Id. Because this single district 

court decision seems to have contributed to a re-evaluation of the Commission’s 

previously expressed appreciation for and insistence upon definite content standards, I ’ 

will address this decision and related precedent at some length?2 B 

# 

el 111. B. 

In MCFL the Supreme Court had held that issue advocacy by corporations and tij r 

9. 

$! 

i 

0. 

unions does not constitute an “expenditure” pursuant to the Act. 479 U.S. at 249. Thus, 

corporate and union communications lacking expss advocacy are not only not 

“independent expenditure^'"^ under Section 44lb-they are not “expenditures” at all. 

Nevertheless, the Christian Coalition court concluded that whether or not corporate or 

union activity is prohibited or protected turns upon whether the activity is “in connection 

with an election,” and not whether the activity is an “expenditure,” under the Act because, 

“[tJhe real issue . . . is whether an expenditure is ‘authorized’ by a campaign or 

‘coordinated’ with the campaign.” 52 F. Supp.2d at 87-88. The Christian Coalition 

court went on to argue that “Buckley, in its treatment of coordinated expenditures as inkind contributions, left undiscussed the First Amendment concerns that arise with respect 

to ‘expressive coordinated expenditures.’ . . . It can only be suqised that the Bucklq 

majority purposely left this issue for another case.”4 52 F. Supp.2d at 85. 

. 

D 

. . 

I’ In doing so the district court failed to address the impact of 2 U.S.C. 0 431(8)@)(vi) in light of the 

Supreme Court’s holding in MWL, supra. See unte pp. 4-5. 

the Commission reversed course on the need for clear content standards after that opinion. Another 

possibility is that these commissioners believe that vagueness and overbreadth can be cured by a content 

standard somewhere between the “electioneering message” standard they specWy rejected and the 

express advocacy test they have so far not adopted, though to date no such standard has been proposed. 

23 The district court stated that ‘‘copmtions and unions can make independent eqenditures that are related 

to a federal election campaign so 1ong.a~ those expenditures are not for commuuications that advocate the 

election or defeat of a clearly identified candidate.” Christiun Coalition at 48 (emphasis in the original). 

Because the term “independent expenditure” is defined within the FEU as requiring express advocpcy, see 

2 U.S.C. 9 43 1 (1 7), and section 441b prevents corporations and unions from malcing any FECA 

kpenditures,” we know that the district court meant !‘issue advocacy” by its use of the term ‘%dependent 

expenditures” in the above sentence. 

The BucAley Court allowed contributions to be carved from First Amembnt protection largely because 

contribution limits “involve 1 little direct restraint on [one’s] political communication [d] does’not in my 

way infiinge on the contributor’s freedom to discuss candidates and issues.” BucUey at 2 1. Investigating 

issue advocates on the theory that their communications may be coordinated with a candidate is a direct 

I presume that the Getiun Coalition case was a factor in this change as’a11 three colllmissioners still on , 

’ 

restraint on a speaker’s hedom to discuss candidates and issues. ._ 

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In addressing the issue, the Christian Coalition court next recognized a need to . differentiate between “expenditures on non-communicative materials, such as hamburgers 

or travel expenses for campaign staff,” which, like direct contributions to the candidate, 

do not communicate the underlying basis of support, and expenditures “in which the 

spender ismsponsible for a substantial portion of the speech.”!d. at 85, n. 45. The latter, 

’ which the court termed “expsssive coordinated expenditures,” are speech-laden or 

communicative, and thkfore different hm other non-communicative in-kind 

contributions. Id. Ultimately, however, the court concluded that coordinated issue 

advocacy could be regulated, believing that it is the “fact of coordination” that is 

significant, not the character of the underlying item that is coordinated. The court seemed 

to conclude that the lesson of Buckley is that it is the independence of the speech, rather 

than its communicative value, that determines its level of constitutional protection. In 

other words, the court focused only on the corruption side of the coin, but not on the First 

Amendment side. Thus, the court found that independent speech is deserving of clear 

content standards, but where independence fades-or at least a complainant alleges it b 

fhded-speech may be extensively investigated regardless of its content and without 

regard for whether that speech constitutes speech of the spender. See id. at 87, n. 50. 

llrli 

00 A. 

0 

!I 

0 

fu 

. 

’ 

I. 

i The district judge in Christian Coalition reasoned that Buckley specifically read 

P; an express advocacy standard only into the statutory provisions regarding independent 

expenditures ‘relative to’ a clearly identified candidate and ‘for the purpose of influencing 

any election for Federal office.’ 52 F. Supp.2d at 87, n.50. Therefore, the court 

concluded, for all other parts of ‘the FECA, the Buckley Court must have “used the tem 

‘expenditure’ advisedly, leaving intact the normal, broad meaning Congress had given it.” 

Id. But what “noxmal, broad meaning” had Congress given the definition of 

. “expenditure”? Webster’s Dictionary defines “expenditure” as “the act of -pending; a 

spending or using up of money, time, etc.; disbursement.” Webster ’s New Twentieth 

Century Dictionary of the Englikh hnguage, p. 644,2d ed., 1977. Clearly the Act did 

, not intend, nor would it be constitutional to prohibit all expenditures or contributions by a 

person in excess of $1000, at least not in the broad, everyday mekg of the terms. Thus 

Congress had limited the scope of both the texms “expenditure” and “contribution” to, 

“[alnything of value . . .for the purpose of influencing any election for Federal oflice.” 2 

U.S.C. 00 431(9)(A)(i) and 431(8)(A)(i) (emphasis added): The Buckley Court, 

however, found that the phrase ‘‘for the purpose of influencin was still insufficiently 

precise to overcome concerns of vagueness and overbreadth: and so narrowed it to , 

cover only express advocacy. 424 U.S. at 79. If, as the Christian Coalition court 

mahtainecl, the Buckley Court defined that critical phrase only with regard to independent 

expenditures, then that phrase must still be imbued with some semblance of meaning 

before deciding which coordinated disbursements are regulable “expenditures,” and 

therefore “contributions” subject to the Act. 

’ 

’ 

P’ 

’’ ‘There is no legislative history to guide [the courts] in determining the scope of the critical phrase ‘for the 

purpose of Muencing,”’ BucMey, at 77, yet ‘‘[ilt is the ambiguity of this phrase that poses constituti~~l 

problems.” fd. 

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When a group engages in public discussion of political issues and coordinates its 

activity with a candidate or committee, the critical phrase that tums the speech into 

prohibited or limited activity is that it is speech “for the purpose of influencing an 

election.” The court in Christian Coalition seemed to assume that because the Supreme 

Court did not specifically define the phrase as being limited to express advocacy in the 

context of coordinated expenditures, it must have decided that groups that are alleged to 

have engaged in coordinated speaking are not faced with the same concerns of vagueness 

and overbreadth. In fact, the Supreme Court has simply never specifically answered the 

There is no normal, accepted meaning of the phrase, “for the purpose of 

influencing,’’ and Congress has not provided one. An “unconstitutionally overbroad 

statute may not be enforced at all until an acceptable construction has been obtained.” 

McGautha v. California, 402 U.S. 183,259 (1971), reh 2. denied, 406 U.S. 978 (1972). 

Either the Commission or the courts must give the phrase “for the purpose of influencing” 

some prospective, content-based meaning. 27 

The approach to coordinated expenditures adopted by Commissioners Thomas 

and McDonald would relieve the Commission hm any need to clearly define which 

speech is “for the purpose of influencing” elections until after an extensive investigation. 

They would have this determination made by the Commission on a caseby-case basis 

after an investigation, which would be, in effect, a search for evidence of the respondent’s 

true intent based upon a totality of the circumstances. These Commissioners believe a 

complete investigation in this case, for example, could have shown that the “the 

Coalition’s communications were undertaken for the purpose of influencing federal 

elections” because the Coalition “aired ads in the weeks before the election;” “dmpped 

, 

asseeanteat 13. 

2’ In the context of FEU, the courts have consistently used an express advocaw test to give meaning to 

the Act’s vague or overly broad provisions. See e.g. Buckley v. Valeo, 424 U.S. 1 (1976); Massachusetts 

Citizens for Life, 479 U.S. 238 (1986); Maine Right to Life v. FEC, 98 F.3d 1 (1“ Cir. 1996), cert. denied 

1 18 S. Ct 52 (1997); FEC v. C%&tian Action Nemrk, Im., 92 F.3d 1 178 (4’ Cir. 1996) (summarily 

aflrming 894 F. Supp. 947 (W.D. Va. 1995)); Faucher v. FEC, 928 F2d 468 (1“ e.), cert. denied, 502 

U.S. 820 (1991); FECv. Central Long Island Tcrx Reform Immediately Comm., 616 F.2d 45 (2d Cir. 1980) 

(en banc); Colorado Republican Fed. Canpaign Comm., 839 F. Supp. 1448 @. Co.), rev’d on other . grounds, 59 F.3d 1015 (lo* Cir. 1995), vacated on other grounds, 116 S. Ct. 2309 (1996); Right to Life of 

Michijpn v. Miller, 23 F. Supp.2d 766 (W.D. Mich 1998); FEC v. National Og.fir Women, 713 F. Supp. 

428 @. D.C. 1989); FECv. American Fed’n ofstate, County &Mun. Employ&, 471 F. Supp. 315 @. 

D.C. 1979). See also FEC v. National Conservative Political Action Comm., 470 U.S. 480,497 (1985) 

(holdiq that the First Amendment prohibits limits on independent expenditures that expressly advocate the 

election or defeat of a candidate, and noting in dicta “[tlhe kt that candidates and elected officials may 

alter or reah their own positions on issues in response to political messages . . . can hardly be called . 

corruption, for one of the essential .htures of democracy is the presentation to the electorate of varying 

points of view.”); Clgon v. FEC, 1 14 F.3d 1309 (1“ Cir. 1997) (holding that the Commission’s efforts to 

regulate “issue advocacy“ as ‘%ontributions” exceeded its powers under the FEU, and stating, “we do not 

take Congress to have authorized rules that sacrSce First Amendment inmsts.”) 

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direct mail ten days before the election;” and “took credit” for the reelection of many 

members of Congress. Thomas/McDonald Statement, at 12, n. 6, (intemal citations 

omitted). Additionally, they would find that “[tlhere is no indication that the Coalitiop 

‘was formed for any purpose other than building . . . public support for certain candidates 

[and] nothing suggesting that the Coalition engaged in . . . issue discussion outside the 

. context of elections.” Thomas/McDonald Statement at 15. The capstone for the 

Commissioners is a quote hm the Coalition itself: “Our ultimate objective is to return a 

. pro-business, fiscally responsible majority for the 105” Congress.” ThomadMcDonald 

Statement at 16 (emphasis omitted), quoting The Wushington Post, August 8, 1996?8 

These criteria offer no prospective guidance and contribute little if anything to 

overcoming the vagueness problem. Because, as the Supkme Court noted in Bdiey, 

“campaigns themselves generate issues of public interes4” 424 US. at 42, and because 

public interest in issues is often highest close to an, election, the logical time to engage in 

issue advoc&y is close to an election?’ Similarly, groups will ultimately hope that if . 

politicians do not adopt their positions on issues, the voters will turn against them. 

Surely, we cannot regulate issue ads simply because they will aflkct what issues and 

stances voters think are important. That does not make their conduct ‘Tor the purpose of 

influencing” a federal election as the meaning of that crucial phrase has been defined to 

avoid vagueness problems in the context of independent expenditures. See Federul 

Election Commission v. GOPAC, 917 F. Supp. 85 1 @. D.C.) (1996). Thus the type of 

criteria on which Commissioners Thomas and McDonald would rely fails, evexi after the 

. 

Commissioners Thomas and McDonald also cite these facts for the proposition that the Coalition was a 

“political committee” that must register under 2 U.S.C. 6 433 and report its activity under 2 U.S.C. 6 434. 

Thomas/McDodd Statement at 15-17. The Act defines “political coI11Dnittce” as “any . . . association . . . of 

persons which receives contributions .. . or makes expenditures aggregating in ex- of 51,000 during a 

calendar year.” 2 U.S.C. 4 431(4)(A) (emphasis added). The Buckley Courtsautioned that the broad 

statutory defhtion of ‘political committee,’ which turns 011 the terms contribution and expenditure and on, 

the phrase “for the purpose of influencing any election” had the potential for encompassing “both issue 

discussion and advocacy.or a political result“ and thus might encroach upon First Ammdmnt hedams. 

Buckley at 79. Therefore, to Mfill the purposes of the Act, the tenn political committee ‘heed only . encompass organizations that are under the control of a candidate or the major purpose of which is the 

nomination or election of a candidate.” Id. While an organization’s &ose may be evidenced by its 

public statements of iti purpose, see MCFL at 262, such an inquiry is secondary to the requisite of finding 

sbcpenditures” or “contri%utions” in excess of S1,OOO. So “[elven if the organization’s major purpose js the 

election of a federal candidate or candidates [, as Commissioners Thomas and McDonald insist the evidence 

would cmcludq] the organization does not become a “political committee” unless or until it makes 

expenditurn in cash or in kind.” See Machinists at 392. The argunrent that ‘bjor puxposc” alone is 

enough to makc a group a “political committee” or make disbursements into “expenditures” as defined by 

the Act was specifically rejected in Federal Election Commission v. GOPAC, 917 F. Supp. 851,861-62 

(1996)(“As a matter of law, the Commission . :. filed to demonstrate .that GOPAC bccam a political 

codtke within the meaning of the Act by spending or receiving 5 1,000 or more and engaging in 

‘prtisan politics’ and ‘electioneering.”’)(emphasis added). 

more than the usual number of floor votes while attempting to wrap up the session. See Bradl9 A. Smith, 

Soft Money, Hard Realitits: ne Constitutional hhibition on a So# Money Ban, 24 J. Legis. 179,192 n. 

85 (1998); See aLPo Mi& v. Alabama, 384 U.S. 214 (1966)(striking down a limited ban w express 

advocacy close to an election). 

’ 

’ 

Furthermore, Congnss is offen still in session within, for example, 60 days of an election, and engaged in 

16 
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9 ! 

$ 

f9 

8 

M 

m 

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i i. 

..... 

!. 1 

fact, to provide any meaningfbl distinctions that would not chill constitutionally protected 

speech. 

~qually important, “[nlo matter what facts [the i om mission] finds through [an] ’ 

investigation, the requisite jurisdiction for the investigation itself must stand or fall on the 

purely legal claim. .. .” Federal Election Commission v. Machinists Non-Partisan Political 

League, 655 F.2d 380,390 @.C. Cir. 1981) @Mer “Machinid’). In Machinists, 

the Circuit Court of Appeals for the District of Columbia had to detemine whether to 

enforce a Commission subpoena against a “draft” committee where it was unclear ’ 

whether the Commission had statutory authority to regulate draf? committees at all. Id. 

The Court stated that any alleged compelling interests the Commission may assert in 

seeking information, can be compelling ahd granted effect if the Commission first has 

authority to regulate a particular type of speech or activity. Id. But the Court held that 

“the highly sensitive character of the information sought simply makes it all the more 

important that the court be convinced that jurisdiction exists.” Id. at 389. 

In the current MUR, the purely legal claim is that coordinated issue advocacy is 

“for the purpose of influencing elections” and so subject to regulation under the FECA. 

Indeciding the question of Commission jurisdiction, the Machinists Court warns us that 

“[iln this delicate ht amendment area, there isgo imperative to stretch the statutory 

language, or read into it oblique references of Congressional intent.. ..” Rather, 

“[a]chieving a reasonable, constitutionally sound conclusion in this case requires just the 

which will avoid serious doubt of their constitutionality.”’Id. at 394, quoting Richmond 

v. United States, 275 U.S. 331 (1928). 

. 

. opposite. ‘It is our duty in the interpretation of federal statutes to reach a conclusion 

Certainly we, a& Commissioners, should equally avoid interpretations of the 

statute that raise constitutional questions, at least absent a clear expression of intent hm 

Congress. We are obliged to be certain we are acting within the confines of the’FECA 

and the Constitution. We cannot use ambiguities to expand our regulatory authority. 

Even if Commissioners do not believe that the Buckley Court limited the phrase ‘‘for the 

purpose of influencing” to express advocacy when applied to coordinated 

communications, they must concede that our guidance in’this area is at a minimum. To 

avoid serious constitutional concerns, we should adopt an objective, bright line express 

advocacy standard as a predicate to investigating allegedly coordinated issue discussion. 

. 

Indeed, the D.C. Circuit has also admonished this agency to use clear, bright line 

standards, not only to address constitutional concems, but for more mundane, practical 

reasons as well. In Orloski v. F.E.C., 795 F.2d 156, 165 @.C. Cir. 1986), the Court of 

Appeals wrote that, “[a]dministrative exigencies mandate that the FBC adopt an ’ 

objective, bright-line test for distinguishing between permissible and impermissible 

corporate donations.” Certainly this would apply to permissible and impermissible noncorporate donations as well. The OrZoski court went on to add that, “an objective test is 

required to coordinate the liabilities of donors and donees. The bright-line test also is 

necessary to enable donees and donors to easily codorm their conduct to the law and to 

17 
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enable the FEC to take the rapid, decisive enforcemet action that is called for in the 

highly-charged political arena.’: Id. Each of these concerns apply in the context of 

coordinated issue advocacy the naming of over 60 respondents and the length of the 

investigation in this MUR show, without an objective content standard neither donees nor 

donors can “easily conform their conduct to the law,” and the FEC cannot take “rapid, 

bright line to avoid a chilling effct on protected speech: “A subjective test based upon 

the totality of the circumstances [such as that favored by Commissioneri Thomas and 

McDonald in this MUR] would inevitably curtail permissible conduct.” Id. 

’ decisive enforcement action.” And, of course, OrZoski also wked of the need for a 

In fact, Orloski warned of other practical problems with a subjective test, many of 

“[A subjective test] would also unduly burden the FEC with requests for 

advisory opinions . . . and with complaints by disgruntled opponents who 

could take advantage of a totality of the circumstances test to hargss the 

sponsoring candidate and his supporters. It would further burden the 

agency by forcing it to direct its limited resources toward conducting a 

full-scale, detailed inquiry into almost every complaint, even those : 

involving the most mundane allegations. It would also considerably delay 

enforcement action. Rarely could the FEC dismiss a complaint without 

soliciting a response because the FEC would need to know all the facts 

bearing on motive before making its “reason to believe” dethtion. 

Id. at 165. These considerations, and in particular the chilling effect on speech of this 

uncertainty, argue fbr an objective, express advocwy test over the vague,posz hoc, 

subjective test favored by Commissioners Thomas and McDonald. 

which are on exhibit in this case; Wrote the court: 

. 

Commissioner Sandstrom, in his turn, voices a concern for vagueness and 

overbreadth, but argues that the “&press advocacy test is a subjeciive, content-based test 

about which reasonable minds can on occasion reach different ksults,” and for that 

reason, ought to be applied “only where more objective criteria are unavailable.” ‘ 

Sandstrom Statement at 6. Commissioner Sandstrom then arguks that the objective 

criteria should be whether the ads were tested for their effect on voters’ candidate 

preferences. Based on this, he voted against the General Counsel’s recommendation to 

take no Mer action in this case. 

First, Commissioner Sandstrom errs in thinking that the express advocacy test is 

subjective. A subjective test depends on the mental impression of the respondent at the 

time his co&unications were made. An objective test relies on independently verifiable . 

facts, such as whether or not a communication contains express words of advocacy of 

election or defeat. While it is true that the inexactness of language means that reasonable 

minds can sometimes reach differing results on whether or not certain words are express 

is 
.-. .- -, .. 

;#J 

words of advocacy of election or defat:’ in the overwhelming majority of cases the 

express advocacy standard is very easy to apply. The occasional disagreement does not 

mean that the express advocacy test is “subjective,” that it fails to provide notice to the 

regulated cokunity, or that it fils to provide courts a standard of reviewing the actions 

of legislatures, regulatory commissions, prosecutors, and inhior courts. By an 

“objective” test, it is not meant that every adjudicator will reach the same result in every 

. case, but rather that the test will not rely on the subjective motives of the.speaker. 

Commissioner Sandstrom’s proposed objective criteria - whether or not the ad was 

tested for effect on voter candidate preferences - is, like the express advocacy test, 

objective in that it does not rely on intent, but is, like the express advocacy test, subject to 

disagreement as to whether it has been rnef?l 

, 

’ 

a 

Fl 

Q 

ae,. * 

m. 

nr. . 

IIJ 

More important, Commissioner Sandstrom’s proposed standard provides no 

guidance to a group that had not so tested its ads. That is, the preserice of such testing 

might quickly allow the Commission to find a purpose to influence a federal election, but 

its absence would not allow the respondent to quickly demonstrate no such purpose. (I do 

not think that Commissioner Sandstrom means to propose that on& issue ads that are 

tested ‘for effect on voters’ candidate preferences would be subject to regulation). Nor 

would the Commission be expected to routinely accept a respondent’s denial of such 

testing without an investigation. Respondents would therefork continue to be subject to 

extensive investigations on the basis of allegations filed by their potitical adv&aries. 

Thus, the chilling effects on speech, not to mention the other problems outlined in 

OrZoski, would still be present. Furthermore, groups engage in issue advocacy in the 

ultimate hope of changing government policy. One way to assure that issue ads will be 

effective is to test them on voters to see if they are likely to encourage voters to put the 

desired pressure on legislators and dandidates to adopt the favored positions. The right to 

engage in political issues discussion would lose much of its meaning if groups and .. 

individuals were limited to communications that were not effective in mobilizing voters. 

!! 

; 

I 

The express advocacy test is an instrument of law designed to further 

constitutional aims by limiting actions of legislatures and regulatory bodies that would 

chill protected political speech through their overbreadth and vagueness. The existence 

of express advocacy is a threshold requirement for regulating the communicative 

expenditures of unions, corporations, groups or individuals. No matter the degree of 

dissatisfaction with the results the test yields, we are not permitted, nor would it be wise, 

to jettison the express advocacy test simply because we might believe in any given case 

that “more objective criteria” are available?’ 

.. 

’ ‘ 

See e.g. Federal Electwn Commission v. Furgatch, 807 F.2d 857 (9’ Cir. 1987), cert den. 484 U.S. 820 

(1987); MUR 4922 (Suburban O’Hare Commission). 

3’ For example, my standard for determining what constitutes “test[ing] an ad’s influence on voters’ choice 

of federal candidate” inay differ from Commissioner Sandstmm’s. Does it include, for example, asking 

generically whether a voter would be more or less inclined to favor a candidate who takes particular 

positions? Or asking not if the ad would affect one’s vote or wen preference, but merely the respondent’s 

opinion of the individual in question? Or suppose that the ads are tested for voters using candidates in a 

Senate race, but then run in a House race? I am sure many more variations are available. 

It goes without saying that there is no basis in the statute or judicial interpretations ofthe statute for 

. 

19 
h .j ... 

* 

It is true that the express advocacy test often yields results with which some 

hdividuals am unhappy. Many observers fear that coordinated issue advocacy has the 

potential to compt candidates and officeholders. The Christian Coalition court, for 

example, warned that were the express advocacy standard “imported” into secfion 441b’s 

. contribution prohibition, “it would open the door to unrestricted corporate or union 

underwriting of numerous campaipirelated comm@cations that do not expressly 

advocate a candidate’s election or defeat.” 52 F. Supp.2d at 88. This would, feared the 

court, “present real dangers to the integrity of the electoral process.” Id. at 92. Of come, 

all of this is nothing more than the district court saying that its concern about quidpro 

quo corruption overrides the vagueness and overbreadth problems inherent h regulating 

issue advocacy. The Supreme Court faced the same issues in Buckley and reached the 

opposite conclusion, recognizing that issue advocacy would be used to influence 

campaigns: “It would naively underestimate the ingenuity and resourcefilness of persons 

and groups desiring to buy influence to believe that they would have much difficulty 

devising expenditures that skirted the restriction on expvss advocacy of election’or defeat 

but nevertheless benefited the candidate’s campaign.” 424 U.S. at 45. Regulating 

coordinated issue advocacy, no matter how much it may or not benefit a campaign, 

plunges the discussion of issues back into a morass of regulation and resuscitates the 

’ concerns of vagueness and overbreadth the Court addressed in Buckley. A content 

standard is needed to alleviate this problem, but at this time our coordination regulations 

possess no content standard beyond the vague statutory language that expenditures be 

made for the purpose of influencing a federal his is effectively no content 

standard at all, as the Buckley Court held in discussing the disclosure provisions of the 

Act, and as another Supreme Court case, cited extensively in BucMey, makes clear. 

. 

In T~O~QS v. Collins, 323 U.S. 5 16 (1 945), Thomas, a national union leader, was . 

accused of violating a Texas statute requiring “all labor Union organizers operating in ... . 

Texas ... to file [for an organizer’s card] with the Secretary of State before soliciting any 

members for his organization.” Zd. at 5 19, n. 1. The statute required organizers to ce 

the card whenever “soliciting” members, and to exhibit the same when requested to do so ’ 

by prospective. members: The statute was invalidated because speakers would not know 

in what ways they could speak about the labor movement, or about labor issues, without . 

Commissioner Sandstrom’s proposal to define groups as political conrmittees by essentially redefining 

“expenditure” and “wn~ition” to include ads tested for their efkt on voter candidate prefumces. 

colllmissioner Sandstrom is also justifiably concerned that the rules be made clear. Sandstnnn Statement at 

4-5. In addition to being well grounded in judicial precedent, the express advocacy test has the advantage 

of being clear? simple to understand for the inexperienced, easy to apply m the overwhelming majority of 

cases, and familiar to regular participants in campaigns.. 

Some have suggested that “the purpose of influencing‘‘ be found in ‘any ad featuring a candidate’s name 

or likeness.’ But this is little improvemept, for.reasons of overbreadth, over the ’relative to a candidate’ 

standard the Court rejected as vague in deciding Buckley. Limiting the content standard to any ad 

containing a clearly-identified candidate is unconstitutionally overbroad for as the Court observed in 

BucMey, “[clandidates, especially incumbents, are intimately tied to public issues involving legislative 

proposals and governmental actions. Not only do candidates campaign on the basis of their positions on 

various public issues, but campaigns helves generate issues of public interest.” 424 U.S. at 42. 

. 

. 

20 
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*\ 

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,---. 

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carrying a card. In short, the statute was invalidated because it lacked a definite content 

standard. 

The court suggested that had the statute included a precise content standard, 

equivalent to the express advocacy test later adopted in BucMey, the regulation could have 

been valid under the State’s police power because, “[a] speaker in such circumstances 

could avoid the words ‘solicit,’ ‘invite,’[or] ‘join.”’ Id. at 534. However, 

[wlithout such a limitation, the statute forbids any language which 

conveys, or reasonably could be found to convey, the meaning of 

invitation. How one might ‘laud unionism’ as the State and State Court 

concede Thomas was fke to do, yet in these circumstances not imply an 

’ invitation, is hard to conceive. . . . In short, the supposedly clear-cut 

distinction between discussion, laudation, general advocacy, and 

solicitation, puts the speaker in these circumstances wholly at the mercy of 

his hearers. ... Such a distinction offm no security for free discussion. 

, 

Id. at 535. 

The Court made the point most relevant to the problerri posed by our current 

coordination regulations: 

The vice [in a statute prohibiting the issuing of invitations without an 

organizer’s card] is not merely that invitation ... is speech. It is also that 

its prohibition fbrbids or restrains discussion which is not or may not be 

hvitation. The sharp line cannot be drawn surely or securely. 

Id. at 535-36 (emphasis added). Similarly, the “vice” in the coordination regulations is 

not that th.ey regulate ads that a candidate may authorize or request. The vice of the 

regulations is that unless they are limited to phrases of a particular kind, speakers who 

want to discuss more generic matters will not know whether they will be investigated 

under the regulations. A speaker seeking to. discuss issues without risking investigation 

can avoid words such as ‘vote for,: ‘elect,’ ‘vote against,’ or ‘defeat.’ But absent a 

content standard, our regulations provide no guidance as to which types of phrases will be 

deemed to ‘’influence the outcomes of elections,” and our regulations will limit or chill 

much. speech that is not or may not be “for the purpose of influencing” a federal election. 

. Nor can the lack of a content standard can be effectively offbet through a 

restrictive test for coordination. While other considerations lead me to support a conduct 

test fbr coordination similar to that enunciated in Christian Coalition aqd since 

incorporated into our regulations at 1 1 C.F.R. 6 100.23, the truth is that such a restrictive 

test for proving coordination can, absent a content standard, actually make investigations 

more intrusive and chilling of speech. The reason is because the more difficult 

evidentiary burden the Comniission faces to prove coordination requires a more intrusive 

investigation to gather facts that are usually in control of the respondent. Thus, while the 

’ 

’ 

21 
coordination rule of Christian Coalition solves the notice problem of the Commission’s 

old “insider trading” standard, it does not address the fundamental vagueness problem. 

“The objectionable quality of vagueness and overbreadth does not depend Ijust] upon 

[the] absence of fhir notice to a[n] accused . . . but [more importantly] upon the danger of 

tolerating, in the area of First Amendment fkedorns, the existence of a . . . statute 

. susceptible of sweeping and improper application.’’ NAACP vi Button, 371 U.S. 415, 

432-433 (1 963). A content standard.provides advance notice to actors of what kind of 

speech the FEC may investigate, and reduces the risk of arbitrary, discriminatory, or 

capricious enforcement far more effectively than a purely conduct based standard. 

Absent a content standard, it does not appreciably warm the environment for 

speech to say that the standard for actually proving and pinishing Coordination ‘knust be 

restrictive,” as the court did in Christian Coalition. 52 F. Supp.2d at 88. This is because 

a restrictive conduct standard does nothing to alleviate the ease with which allegations 

may be made and intrusive, expensive investigations launched. The Supreme Court in , 

Z4omas v. Collins, assessing the chilling effect of the Texas statute upon speech, did not 

discuss the defendant’s likelihood of success at trial, or the difficulty that the State would 

have in proving whether the defend& violated the organizer-card ordinance, or the 

elements involved in’ that proof. The mere threat of prosecution was sufficient tb chill 

speech and make the statute unconstitutional. (‘“‘he threat of ... amst ... hung over every 

word.” Id. at 534.) Because the threat of prosecution (or investigation) can itself chill 

speech, see Virginia v. American Boohellers Ass ‘n., 484 U.S. 383,392-93 (19981, a 

tough conduct standard does not eliminate the need fbr a clear content standard. A 

precise content standard along with the new conduct standards outlined in 1.1 CFR 0 

110.23 would work as bookends in enforcing the Act while removing an unconstitutional 

chill hm protected speech and associational activities. 

v. ’ 

Investigations into allegations of coordination will ob involve demands for ’ 

’ 

access to an organization’s detailed legislative and political plans, including intrusion into‘ 

the most sensitive intm’al political discussions. See generally, AFLCIO, et 41. v. FEC, 

Civ. Action No. 01-1522 (GK), Dist. Ct., District of Columbia. The express-advocacy 

content stan- ensures that investigations into allegations of coordination are only 

visited upon those groups, corporations or unions who first cross a bright, content line. 

The dangers to the First Amendment posed by such broad government 

investigations of political activity have been recognized time and again by the federal 

courts. See e.g., F.E.C. v. Larouche Campaign, 817 F.2d 233,234 (2d Cir; 

1987)(recognizing that the Commission’s investigative au,thority should be constrained or . 

clearly delineated due to the sensitive nature of the activities the agency regulates, and 

holding that where a case implicates First Amendment concerns, “the usual deference to 

the administrative agency is not appropriate and protection of the constitutional liberties 

of the target of the subpoena calls for a more exacting scrutiny of the justification off& 

by the agency.”) In BucMey, the Supreme Court recognized that “compelled disclosure 

22 
[of political activities], in itself, can seriously inkinge on privacy of associations and 

belief guaranteed by the First Amendment.” 424 U.S. at 64. Justice Frankfiuter made the 

same point over forty years ago: “It is particularly important that the exercise of the 

power of compulsory process be carehlly circumscribed when the investigatory process 

tends to impinge upon such highly sensitive areas as freedom of speech or press, Morn 

of association, and freedom of communication of ideas.” fie9 v. New Hampshire, 354 

constitutional sensitivity ought to be triggered only where respondents can know that they 

have crossed a bright 1ine.3~ 

. U.S. 234,235 (1957) (Frankfhter, J., concurring). Investigations into such areas of 

The suggestion that a bright line can be found by the fact of communicating with a 

candidatein other words, that a speaker can find a safeharbor by not communicating at 

all with a candidate in the two, four or six-year period between elections, is not realistic?’ 

Indeed, one reason for our passing the new coordination regulation was the recognition 

that opr old edomement standard, presumptively finding coordination based on any 

contact between the speaker and the candidate, was unrealistic. For example, in seeking 

to prove coordination between the Christian Coalition and various Republican candidates, 

the Commission’s evidence included the fact that public officials addressed meetings of 

the organization. See Christian Coalition; 52 F. Supp.2d at 68,71,76. Public officials 

have a legitimate need to communicate with their constituents, these constituents have a 

right to listen to their elected officials, and “nowhere in the Act did Congress expressly 

limit an incumbent’s right to cbmmunicate with his constituency.” Orloski v. Federal 

Election Commission, 795 F.2d 156, 163 @.C. Cir. 1986). Groups and candidates talk all 

the time, and to force groups to choose between talking to candidates or losing their 

safeharbor is likely to be as chilling on the First Amendment rights to speak and to 

petition the government as the conduct standard the Commission just rejected. 

. 

, I do not suggest that.the Commission may make no inquiries at all until it is surc that express advocacy 

exists. The Commission could conduct a Reader’s Digest inquiry, even to the point of enf’ing subpoenas, 

to be certain no express ads were run. See Reader’s Digest Ass’n. v. FEC, 509 F. Supp. 1210 (S.D.N.Y) 

(where fircml questions existed regarding whether the Commission had statutary authority to conduct a full, 

investigation, the court adopted a two-step process to govun its continuation; the first stage of the 

investigation would be solely for the purpose of demminiag whether statytory authority existed). As a 

factual matter, complaints are normally filed because someone-usually the speaker’s political opponenthas seen the ads in question. The ads are described in or attached to the complaint, so even a Reader’s 

DQesr inquhy will be rare. when the ads are not shown by the complaint to be issue a&, the respondent 

can typically attach the ads to the response, and if they do not include express advocacy, the enfiiemwt 

ends there at very low cost to both respondent and conrmission. 

35 Chairman McDonald and Commissioner Thomas state that the Act and the Buckley Court required only a 

“general understanding“ to find coordination and presumably would state that persons speaking with 

legislative officials or candidates in the 2,4 or 6 years between elections do so at their own risk. See 

ThomasflMcDonald Statement at 7. I disagree with this conclusion, for the reasons stated in C7flon; See 

114 F.3d 1309 at 1314. The district court in Chrhtian Coolition also seemed not to appreciate the First 

Amndment dilemma ‘in this area, xnischaracterizing the choice as one between “lobbying the campaign on 

issues but spendiag no money on the election . . . or remaining walled off hm the campaign so that all 

campaign-related expenditures are clearly independent.” Christian Coalition, 52 F. Supp. 2d at 89, n. 53 

(enqhasis added). Approximately fifty percent of all ‘- involve office holders who ma@ up “the 

govemment,” and with whom the speaker may wish to confer on legislative issues pursuant to the First 

Amendment right to “petition fbr a redress of grievances.” U.S. CONST. amend. I. 

23 
>- \, 

t. ! 

TI 

P 

I 

s“ ‘i 

Issue discussion ought not, and constitutionally cannot, be regulated merely 

because an issue ad may be of benefit to the candidate or his campaign. Issue discussion 

vriill almost always, at some point, benefit some campaign, as the Buckley Court ’ 

understood. The purpose of the express advocacy test is not to neatly separate those 

’ communications that are intended to influence a campaign hm those that are not, but to 

protect the rights of all citizens to engage in protected speech. In this respect, the test is 

similar to mgy other prophylactic tests found in the law. For example, in Miranda v. 

Arizona, 384 U.S. 436 (1966), the Supreme Court recognized that “to permit a full 

opportunity to exercise the privilege against self-incrimination, the accused must be 

adequately and effectively apprised of his rights and the exercise of those rights must be 

filly honored.” Miranda, at 467?6 The warnings that law enforcement officials have 

been required to give to suspects ever since are not a sifting screen to divine the 

subjective intent of the suspect; not one tool among many for determining whether his 

confession Was voluntary. Likewise, the express advocacy test is not a sifting screen to . 

divine the subjective intent of a respondent, to detemine whether in his mind the speech 

he engaged,in was for the purpose of influencing an election. Rather, both the Miran& 

warnings and the express advocacy test are objectively ascertainable threshold 

requirements promulgated by Courts to protectthe constitutional rights of citizens. . 

Neither test is disposable, even though there may be other evidence that a confession was 

voluntary, or that a respondent’s speech was “for the purpose of influencing“ an election. 

As stated by the Court in Miranda, the “privilege is so fundamental to our system of 

constitutional .rule and the expedient of giving adequate warning as to the availability of 

the privilege so simple, we will not pabse to inquire in individual cases whether the . 

defendant was aware of his rights without a waming being given.” Miranda at 468. The 

First Amendment is no less hdamental,3’ and fie expedient of applying the express 

advocacy test so simple, that we may not and ought not pause to inquire in individual 

cases whether speech can be “for the purpose of influencing” aq election without first 

’ 

, 

. 

. Campaign finance laws and regulations have, over time, become weapons in the ’ 

arsenals of candidates &d party committees, and we should not quickly minimize the hrone mjor political party went so far as to sue his counterpart under the RICO ~tatute?~ If 

finding express advocacy? 

reaching aspects of these regulations. In 2000 the Congressional Committee chairman of 

The Miranda wamings were re-affinned last year as a constitutionally based approach for’determining the 

admissibility of statememts made during a custodial interrogation that could not be ovded by statutory 

ensctmcnt. Dickerson v. United S&tes 530 US. 428 (2000). 

’’I See e.g;, Bucklq v. Valeo, 424 U.S. at 14 (“Discussion of public issues and debate [is] integral to the 

o eration of the system of govexnment established by our Constitution.”) 

‘The law is 111 of blanket rules, in addition to Mimnda, that are adopted in order to protect rights or to 

provide fix increased accuracy or efficiency, eyen if in a particular case the application of the rule does not 

sccm to achieve its purpose. For example, statutes of limitations may prevent an action even when evidence 

is not stale; the exclusionary rule oh prevents evidence fram being used in trials though it is known to be 

probative; the parole evidence rule may make a contract unenforceable though the evidence is clear that 

such adealwas made, to name just a few. 

39 In 2000, DCCC Chairman, Patrick Kennedy @-R.I.) sued the NRCC and Tom DeLay (R-Tx.) under the 

24 
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. 

our coordination regulations proceed without an adequate content standard, it yill take 

the political elite about three minutes to deduce that nearly all allegations of coordination 

will be followed by an FEC investigation, to which the respondent can offix no 

aflirmative defense that will quickly terminate the investigation. Given that groups 

kquently have contacts with officeholder/candidates, credible allegations of 

' coordination will be easy to make. If the complaint is reasonably well-crafted,M the 

Commission will have no choice but' to find 'keason to believe" that 'a violation has 

occurred. This is low-hanging hit for any party, candidate, person or group seeking to 

silence and harass opposing voices in an election cycle. 

' 

. 

Whether express advocacy is present in any written or broadcast message, 

however, is a legal question susceptible of a quick preliminary determixiation by the 

Commission. It therefore acts as an aflkmative defense the Commission can accept or 

reject in the initial stages of the MUR. Absent such a test, a respondent's preliminary 

denial of coordination, even when backed by signed aflidayits, will never amount to 

anything more than a self-serving ktual (not legal) representation. If in the hture the 

Commission adopts an incomt content standard, or effectively no content standard, 

there will be no afkmative defense that could save an advocate from a protracted 

investigation. The express advocacy bright line serves as that affirmative defense. Ifthe 

Commission abandons that bright line, any group or individual which seeks to both 

engage in issue discussion and has even a passing contact with elected officials m'ay be 

subject to allegations that will trigger the type of massive, investigation, and 

corresponding. costs, seen in this MUR. Thus it will be among the most aggressive moves 

the Commission has taken towards chilling debate in the United States. 

. 

, 

. 

The expensive, intrusive, lengthy investigation of MUR 4624, like the similar 

four-year investigation in MUR 429 1, would have been readily avoided by the 'simple 

application of an express advocacy content standard. Adopting this standard is, in my . 

yiew, required by both the statute and the Constitution. But even if not requjred, it is 

certainly a permissible standard under the statute, and offks manybenefits. It provides 

clear notice to the community; it should result in fewer Advisory Opinion requests than 

the mere conduct standard; it will result in fewer expansive investigations which eat up 

Commission resources; it will reduce the role of litigation'in campaigns; and most 

importantly, it avoids any concerns about constitutionality, and will not have the chilling 

effect on speech of an approach without a clear content standard. 

. 

' 

Thus I would have ended this MUR on much simpler grounds, at a much earlier 

date, by finding that the Coalition's spending for issue advocacy, whether or not ' 

RICO statute. See Juliet Eilperin, House Democrats Sue DeLq; Action Accuses Khip of &tortion. Money 

Laundering in Fundmising, THE WASHINGION POST, May 4,2000, at AQ6. 

Commission policy has been to treat complaints 11-1~. Ifthe complainant swears an affidavit (as he is 

essentially required to do in swearing out a complaint, see 2 U.S.C. g437g(a)), the Commission will nearly 

always be required to launch into a fidl investigation to hirly decide whether the complainant or respondent 

bas the better hctual representation. "Rerely could the FEC dismiss a complaint . . . because the FEC would 

need to know all the facts bearing on motive before making its . . . determination." Orloski at 165. 

25 
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Ij 

otherwise coordinated, was as a matter of law not for the purpose of influencing an 

election and not subject to regulation under the FECA. 

DAkLb ' DazhLf 

'Bradley Bradley A. Smith, kodnissioner o issioner Datd '. 

26