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The FEC's Assault on the First Amendment

Free Speech & Election Law Practice Group Newsletter - Volume 1, Issue 1, Fall 1996
By James Bopp Jr.
December 01, 1996

The Federal Election Commission's well-publicized lawsuit against the Christian Coalition brings to light the 20-year war it has waged on the First Amendment. This case is merely another in a long list of failed attempts by the FEC to suppress issue-oriented speech by citizens groups -- and along the way to circumvent the First Amendment.

This sorry tale began twenty-two years ago with Congress's adoption of the post-Watergate Federal Election Campaign Act. The motivating theory behind the FECA was that unregulated political speech is dangerous to democracy. In pursuit of this goal, one provision of the FECA prohibits corporations and labor unions from making any "expenditure" or "contribution" in connection with a federal election.

Since the adoption of the FECA, the FEC, which has broad powers to enforce the Act, has taken the position that any speech that might influence an election is political speech which can be prohibited. This is where the Christian Coalition and many other lobbying groups come in. Most lobbying groups, ranging from NOW to the United States Chamber of Commerce, are incorporated and engage in vigorous issue advocacy. This includes the publication of "scorecards," which rate the legislative performance of incumbent Congressmen, and "voter guides," which inform the general public of candidates' positions.

Because these groups are incorporated, they are subject to the prohibition on corporate political speech. The FEC, however, has long viewed these "scorecards" and "voter guides" as prohibited speech because they may influence an election. As a result, the FEC has relentlessly sought to prohibit such issue-oriented speech.

These efforts, however, have run up against the First Amendment, since the federal courts have properly recognized that political speech is "at the core of our electoral process and of First Amendment freedoms." For example, the Supreme Court held in FEC v. Massachusetts Citizens for Life (1986) that, for speech to be subject to the FECA's corporate prohibition, it must pass a "bright-line" test -- that the communication must contain explicit words expressly advocating the election or defeat of a clearly identified federal candidate. This bright line test was required by the First Amendment in order to provide ample breathing room for issue-oriented speech.

The FEC, however, has not been deterred in its obsession to suppress issue-oriented speech and has treated the First Amendment as little more than an inconvenient obstacle it must avoid. As a result, the FEC has sought to blur the "bright line" by claiming that explicit words of advocacy are not necessary, thereby subjecting issue-oriented speech, including "voter guides" and "scorecards" to the FECA's prohibition.

Blurring this distinction between express advocacy and unregulated speech would have serious consequences for free speech and our representative democracy. If a speaker is unsure whether speech criticizing the position of a politician on an issue "influences an election," a chill descends on the public discussion of issues. This chill is exacerbated by the threat of selective enforcement by the FEC which may determine after the fact that one speaker influenced an election while another did not.

Fortunately, this FEC assault on the First Amendment has been consistently rebuffed by the courts in almost a dozen cases over 20 years, beginning with Buckley v. Valeo (1976) and continuing right up to the present. See, e.g., Maine Right to Life Committee v. FEC (D.Me. 1996).

But in suing the Christian Coalition for distribution of their non-partisan voter guides--which only set forth the positions of candidates on the issues, without endorsing any candidate--the FEC has simply shifted the ground for its attack on the First Amendment. Having lost the battle against the express advocacy test, the FEC now alleges that it can prohibit voter guides as unlawful corporate "contributions" if they are "coordinated" with a candidate.

Here again, the FEC stretches the law. The FEC does not allege that the specific voter guides, such as the 1992 voter guide on the Bush/Clinton/Perot presidential election, were prepared and distributed at the urging of President Bush. They argue instead that the relationship between Pat Robertson or Ralph Reed and the Bush campaign was such that the Christian Coalition voter guide must be "presumed" to have been coordinated with these candidates.

Unfortunately for the FEC, the Supreme Court recently rejected this FEC theory. In Colorado Republican Federal Campaign Committee v. FEC, the FEC argued that the intimate relationship between a political party and its candidates resulted in automatic coordination of all expenditures of the political party which might influence that election. In an opinion by Justice Breyer, the Supreme Court held that, for an expenditure to be coordinated, the FEC must prove that the specific expenditure in question was in fact coordinated; otherwise, the First Amendment requires that it be presumed to be an independent expenditure. Since the Christian Coalition's voter guides are not specifically coordinated with any candidate, they too are independent and not a contribution to any candidate's campaign.

So where does this leave the constitutional protection of issue advocacy? According to the First Amendment, issue advocacy is fully protected and, in fact, numerous organizations are currently engaged in it--most notably the AFL-CIO in its $35 million dollar issue-oriented campaign to unseat freshman Republican Congressmen by criticizing them for their votes in Congress.

However, the FEC's unsuccessful efforts to limit issue advocacy has come at great cost to the First Amendment. Even though the FEC has lost every case it has brought in its effort to suppress issue-oriented speech by citizens groups, the chill on free speech has silenced many citizens who have forgone their participation in our political process rather than risk a suit by the FEC. It is time that Congress step in and reign in this lawless government agency that is seeking to cut out the core of our First Amendment freedoms.

*James Bopp, Jr. is member of the Terre Haute, Indiana law firm of Bopp, Coleson & Bostrom and serves as Vice-Chairman of the Federalist Society's Free Speech and Election Law Practice Group. He represents the Christian Coalition in the suit brought by the FEC.