Campaign Finance "Reform": The Good, The Bad, and The Ugly

"[The First Amendment] reflects our 'profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open.' In a republic where the people [and not their legislators] are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential, for the identities of those who are elected will inevitably shape the course we follow as a nation."⁽²⁾

INTRODUCTION

Amendments to the Federal Election Campaign Act (FECA) will be debated in the U.S. Senate as early as mid-July 1999 and in the U. S. House of Representitives in September 1999. Many of the so-called reform proposals floating around Washington, D.C., however, are nothing more than incumbent protection acts that would make entrenched politicians even less responsive to citizen input.³ Some politicians have remarked that many of their colleagues "feel threatened by negative advertisements and want to control what is said during cmapaigns";⁴ others simply want to reduce the level of spending devoted to political campaigns.⁵

The supposed problems with current campaign finance system that have been identified by "reformers" and echoed by the media are not problems from the standpoint of Americans who want a greater say in who is elected and which policies public officials will purseu. Considering the enormous power and influence of government, there may be too little money spent during political campaigns, not too much.⁶ Short of reducing the power and scope of government, which is a good reform in intself, Congress should not try through regulations to reduce the amount of money spent in political campaigns. Instead, it should concentrate on reforming or eliminating the current campaign finance laws that distort the ways citizens can particvipate in the electoral process.

But even if there were universal agreement regarding specific problems with current campaign finance laws, Congress must be careful that its reforms are constitutional and that its proposed "cure" is not worse that the "disease." Any law that attempts to limit citizens' freedom of speech and association further is not wirth the price. For example, even if the rising aggregate costs of campaigns were accepted universally as a problem, that still would not provide a justification for Congress to limit spending on political campaigns. As the Supreme court held in Buckley v. Valeo,⁷ political speech and associational expression are the people's exclusive domain:

The First Amendment denies government the power to determine that spending to promote one's political views is wasteful, excessive, or unwise. In the free society ordained by our Constitution it in not the govenment, but the people-individually as citizens and candidates and collectively as associations and political committees-who must retain control over the quantity and range of debate on public issues in a political campaign.⁸

Thus, the effort by the "reformers" to take this power from the people is both wrong and doomed to fail because it is unconstitutional.

Chief among the wrongheaded and unconstitutional sets of proposals is the Bipartisan Campaign Finance Reform Act of 1999, sponsored in the Senate (S. 26) by Senators John McCain (R-AZ) and Russell Feingold (D-WI) and in the House (H.R. 417) by Representatives Christopher Shays (R-CT) and Martin Meehan (D_MA). Although announced with the promise of reducing the "corrupting influence of big money,"⁹ these bills would do nothuing of the sort. Instead, they shake a fist at the First Amendment and, if passed, would be destined for a court-ordered funeral.

Amendments to the Federal Election Campaign Act (FECA) will be debated in the House and Senate in the next few months. "Many of the so-called reforms floating around Washington are in fact nothing more than incumbent protection acts."⁽³⁾ "Many politicians feel threatened by negative advertisements and want to control what is said during campaigns,"⁽⁴⁾ and others simply want to reduce the spending on political campaigns.⁽⁵⁾

But incumbent protection and the rising costs of campaigns do not provide a justification to limit spending on political campaigns. As the Supreme Court held, in Buckley v. Valeo,⁽⁶⁾ in rejecting the argument, political speech is the people's exclusive domain:

The First Amendment denies government the power to determine that spending to promote one's political views is wasteful, excessive, or unwise. In the free society ordained by our Constitution it is not the government, but the people -- individually as citizens and candidates and collectively as associations and political committees -- who must retain control over the quantity and range of debate on public issues in a political campaign.⁽⁷⁾

The effort by the reformers to seize this power from the people is both wrong and doomed to fail.

Chief among these proposals is the "Bipartisan Campaign Finance Reform Act of 1999" sponsored in the Senate (S. 26) by Senators John McCain (R-AZ) and Russell Feingold (D-WI), and in the House (H.R. 417) by Representatives Christopher Shays (R-CT) and Martin Meehan (D-MA). Though announced with the promise of reducing the "corrupting influence of big money,"⁽⁸⁾ these bills do nothing of the sort; rather, they shake a fist at the First Amendment and, if passed, are destined for a court-ordered funeral. The most egregious provisions and their constitutional infirmities are discussed below.

There are, however, constitutional measures that the Congress could adopt which would address many of the concerns with the present system. To adopt such measures, Congress needs to realize that the current perceived abuses are simply the predictable result of past "reforms" -- where political speech suppression has been the principal focus of the "reformers." In contrast, adopting measures that would enhance political speech would more effectively deal with these problems and would be upheld by the courts. These constitutional reforms are also discussed below.

DEMISE OF PROTECTED ISSUE ADVOCACY

The Supreme Court in Buckley cabined the range of political speech constitutionally subject to regulation to include only "express advocacy," a very narrow class of election-related speech where one pays for a communication that in "explicit words" or by "express terms advocates the election or defeat of a clearly identified candidate."⁽⁹⁾ A "finding of 'express advocacy' depend[s] upon the use of language such as 'vote for,' 'elect,' 'support,' etc."⁽¹⁰⁾ Conversely, protected issue advocacy is the discussion of issues and candidates' positions on them without expressly advocating their election or defeat. Certain "reforms" attempt to obliterate this constitutional distinction.

For example, McCain-Feingold adopts two new terms, (1) "electioneering communications," which is defined as any television or radio broadcast that merely "refers to a clearly identified candidate for federal office" within 60 days of a general election or 30 days before a primary election, and is broadcast to an audience that includes the electorate for such election;⁽¹¹⁾ and (2) "federal election activity," which, similarly, is defined to include any "communication that refers to a clearly identified candidate . . . and is made for the purpose of influencing a Federal election (regardless of whether the communication is express advocacy)."

Under McCain-Feingold's restrictions on "electioneering communications," unfettered issue advocacy would be a bygone era. Non-corporate/labor organizations that spend more than $10,000 in the aggregate on issue advocacy during the pre-election periods specified in the bill (which is very easy to do) would be subject to strict reporting requirements.⁽¹²⁾ Expenditures on issue advocacy during the pre-election periods that are deemed to be "coordinated" with a candidate (under a new expansive and unconstitutional definition, infra), would be regarded as contributions to candidates and thus subject to FECA's contribution limits.⁽¹³⁾ Corporations and labor unions would be banned from engaging in issue advocacy during the pre-election periods.⁽¹⁴⁾

With respect to "federal election activity," any person that expends more than $50,000 in the aggregate on the same would be subject to the same reporting requirements now imposed upon PACs.⁽¹⁵⁾ If these disbursements are made within 20 days of an election would have to report within 24 hours of making the expenditure on issue advocacy.⁽¹⁶⁾

Shays-Meehan has similar objectives. It adopts three definitions of "express advocacy," only one of which is constitutional. To say, however, as do the bill's sponsors, that Shays-Meehan "[s]trengthens" the definition of "express advocacy,"⁽¹⁷⁾ ignores the fact that the Supreme Court has already carefully defined the term "express advocacy" for constitutional purposes.⁽¹⁸⁾

From Shays-Meehan's three definitions of "express advocacy," the Federal Election Commission (FEC) would determine whether a political speaker has (1) violated FECA's ban on business corporations making independent expenditures;⁽¹⁹⁾ (2) failed to register and report as a PAC (having spent at least $1,000 in the aggregate on independent expenditures);⁽²⁰⁾ or (3) if not a PAC, failed to file reports with the FEC (having spent at least $250 in the aggregate on independent expenditures).⁽²¹⁾

The most egregious of the alternate definitions of "express advocacy" in Shays-Meehan provides for what is essentially a "no advocacy" definition of "express advocacy" where radio or television is the medium:

The term "express advocacy" means a communication that advocates the election or defeat of a candidate by referring to one or more clearly identified candidates in a paid advertisement that is transmitted through radio or television within 60 calendar days of an election of the candidate and that appears in the State in which the election is occurring, except that with respect to a candidate for office of Vice President or President, the time period is within 60 calendar days preceding the date of a general election.⁽²²⁾

Then to make sure that print communications are also covered, Shays-Meehan provides another definition of "express advocacy" -- an "implied advocacy" standard:

The term "express advocacy" means a communication that advocates the election or defeat of a candidate by expressing unmistakable and unambiguous support for or opposition to one or more clearly identified candidates when taken as a whole and with limited reference to external events, such as proximity to an election.⁽²³⁾

The effect of Shays-Meehan's proposed definitions is to completely obliterate the Supreme Court's express advocacy/issue advocacy distinction. While all individuals, political parties, businesses and other organizations are presently free to discuss candidates and their record on issues without regulation by the federal government, under Shays-Meehan, this would change. Organizations that engage in issue advocacy would be subject to extensive disclaimer⁽²⁴⁾ and reporting requirements.⁽²⁵⁾ Those organizations whose "major purpose" is issue advocacy and grass roots lobbying, but heretofore were not considered PACs because they engaged only in issue advocacy,⁽²⁶⁾ would have to comply with even "more extensive requirements" and "more stringent restrictions," by being required to register as PACs.⁽²⁷⁾ Business corporations would be banned from making expenditures on what previously was sheltered issue advocacy.⁽²⁸⁾ All of these measures fly in the face of the First Amendment's broad protection of issue advocacy.

ISSUE ADVOCACY ENJOYS ABSOLUTE FIRST AMENDMENT PROTECTION

. . . the freedom of speech," the "reformers," beginning with the post-Watergate amendments to FECA, have refused to take "no" as the answer. The Supreme Court, and the lower federal courts, however, have consistently enforced the First Amendment against all attempts to regulate issue advocacy.

The Supreme Court has recognized that the freedom of speech is both an inherent liberty and a necessary instrument for limited representative government.⁽²⁹⁾ Moreover, as the Court has observed, "[i]n a republic where the people[, not their legislators,] are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential, for the identities of those elected will inevitably shape the course that we follow as a nation."⁽³⁰⁾ "'[I]t can hardly be doubted that the constitutional guarantee [of the freedom of speech] has its fullest and most urgent application precisely to the conduct of campaigns for political office.'"⁽³¹⁾

The seminal case is the 1976 decision of Buckley v. Valeo where the Supreme Court was faced with constitutional questions regarding the post-Watergate amendments to FECA -- which was by far the most comprehensive attempt to regulate election related communications and spending⁽³²⁾ to date. One of the more nettlesome problems with which the Court struggled was the question of what speech could be constitutionally subject to government regulation. The post-Watergate FECA was written broadly, subjecting any speech to regulation, which was made "relative to a clearly identified candidate,"⁽³³⁾ or "for the purpose of . . . influencing" the nomination or election of candidates for public office.⁽³⁴⁾

In considering this question, the Court recognized that the difference between issue and candidate advocacy often dissipated in the real world:

For the distinction between discussion of issues and candidates and advocacy of the election or defeat of candidates may often dissolve in practical application. Candidates, 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 themselves generate issues of public interest.⁽³⁵⁾

The Court resolved this dilemma decisively in favor of protection of issue advocacy. First, the Court recognized that "'a major purpose of [the First Amendment] was to protect the free discussion of governmental affairs. . . . of course includ[ing] discussions of candidates.'"⁽³⁶⁾ This was because the "[d]iscussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution."⁽³⁷⁾ Thus, the Court observed that issue advocacy was constitutionally sacrosanct:

[d]iscussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order "to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people."⁽³⁸⁾

Second, in order to provide this broad protection to issue advocacy, the Court adopted the bright-line "express advocacy" test which limited government regulation to only those communications which, in "explicit words" or by "express terms advocate the election or defeat of a clearly identified candidate."⁽³⁹⁾ In so doing, the Court narrowed the reach of FECA's disclosure provisions to cover only "express advocacy."⁽⁴⁰⁾ A decade later, the Court reaffirmed the express advocacy standard and applied it to the ban on corporate contributions and expenditures in connection with federal elections.⁽⁴¹⁾

Finally, not even the interest in preventing actual or apparent corruption of candidates, which was found sufficiently compelling to justify contribution limits, was deemed adequate to regulate issue advocacy. The Court rejected this interest even though it recognized that issue advocacy could potentially be abused to obtain improper benefits from candidates.⁽⁴²⁾ "What the Supreme Court did was draw a bright line that may err on the side of permitting things that affect the election process, but at all costs avoids restricting, in any way, discussion of public issues."⁽⁴³⁾

In adopting a test that focused on the words actually spoken by the speaker, the Court expressly rejected the argument that the test should focus on the intent of the speaker or whether the effect of the message would be to influence an election:

[W]hether words intended and designed to fall short of invitation [to vote for or against a candidate] would miss the mark is a question both of intent and of effect. No speaker, is such circumstances, safely could assume that anything he might say upon the general subject would not be understood by some as an invitation. 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 the varied understanding of his hearers and consequently of whatever inference may be drawn as to his intent and meaning.

Such a distinction offers no security for free discussion. In these conditions it blankets with uncertainty whatever may be said. It compels the speaker to hedge and trim.⁽⁴⁴⁾

In addition, some "reformers" claim that the Court was not sufficiently farsighted to see the effect that issue advocacy would eventually have in influencing elections and, if we only bring this to their attention, then the Court will allow government regulation of it. However, the Court made clear that it was not so naive:

Public discussion of public issues which also are campaign issues readily and often unavoidably draws in candidates and their positions, their voting records and other official conduct. Discussions of those issues, and as well as more positive efforts to influence public opinion on them, tend naturally and inexorably to exert some influence on voting at elections.⁽⁴⁵⁾

Even so, the Court explicitly recognized that individuals and groups were at liberty to influence elections with issue advocacy:

So long as persons and groups eschew expenditures that in express terms advocate the election or defeat of a clearly identified candidate, they are free to spend as much as they want to promote the candidate and his views.⁽⁴⁶⁾

Numerous federal courts, including the several courts of appeal that have been faced with restrictions on issue advocacy have faithfully adhered to the "explicit" or "express" words of advocacy test according to its plain terms.⁽⁴⁷⁾ There is thus almost no support in the federal courts for regulation of issue advocacy. Instead, the federal courts have almost uniformly struck down as unconstitutional these attempts to evade the bright-line distinctions established in Buckley.

THE "IMPLIED ADVOCACY" DEFINITION OF "EXPRESS ADVOCACY"

Implicitly acknowledging that only "express advocacy" can be regulated, some "reformers" wish to redefine "express advocacy" in contradictory terms. For example, Shays-Meehan would adopt, as one of its alternate definitions of "express advocacy," an "implied advocacy" test:

The term "express advocacy" means a communication that advocates the election or defeat of a candidate by expressing unmistakable and unambiguous support for or opposition to one or more clearly identified candidates when taken as a whole and with limited reference to external events, such as proximity to an election.⁽⁴⁸⁾

The only plausible support for this definition is the Ninth Circuit's decision in FEC v. Furgatch, upon which this test is apparently based.⁽⁴⁹⁾ Furgatch involved an enforcement action against an individual for publishing a newspaper ad critical of President Carter and urging the readers "DON'T LET HIM DO IT."⁽⁵⁰⁾ The FEC sued, claiming a violation of FECA for the failure to report this expenditure to the FEC and to place a disclaimer on it. The Ninth Circuit agreed with the FEC that these violations occurred:

We conclude that speech need not include any of the words listed in Buckley to be express advocacy under the Act, but it must, when read as a whole, and with limited reference to external events, be susceptible of no other reasonable interpretation but as an exhortation to vote for or against a specific candidate. This standard can be broken into three main components. First, even if it is not presented in the clearest, most explicit language, speech is "express" for present purposes if its message is unmistakable and unambiguous, suggestive of only one plausible meaning.⁽⁵¹⁾

The problem with the "reformers" relying only on this much of Furgatch is that they fail to acknowledge its second and third components: "Second, speech may only be termed 'advocacy' if it presents a clear plea for action, and thus speech that is merely informative is not covered by [FECA]. Finally, it must be clear what action is advocated."⁽⁵²⁾ Such clarity of advocacy converts implied advocacy into express advocacy. In addition, the language from Furgatch, which allows one to take account of "external events," is at best dictum as the communication at issue was express advocacy.⁽⁵³⁾ Otherwise, the reference is a direct assault on Buckley. The most reasonable reading of this case was articulated by the Fourth Circuit, which simply saw reference to external events as permissible only where a political communication's explicit directive is ambiguous:

[T]he simple holding of Furgatch was that, in those instances where political communications do include an explicit directive to voters to take some course of action, but that course of action is unclear, "context"--including the timing of the events of the day--may be considered in determining whether the action urged is the election or defeat of a particular candidate for public office.⁽⁵⁴⁾

Seen in this light, it is a very narrow holding applicable to few, if any, political communications, and certainly easy to avoid. The FEC, as well as several states, have adopted various forms of Shays-Meehan's "implied advocacy" test and these efforts have been consistently struck down.⁽⁵⁵⁾

THE "NO ADVOCACY" DEFINITION OF "EXPRESS ADVOCACY"

Finally, the most outrageous of the alternate definitions of "express advocacy" in Shays-Meehan provides for a "no advocacy" definition of "express advocacy" where radio or television is the medium:

The term "express advocacy" means a communication that advocates the election or defeat of a candidate by referring to one or more clearly identified candidates in a paid advertisement that is transmitted through radio or television within 60 calendar days of an election of the candidate and that appears in the State in which the election is occurring, except that with respect to a candidate for office of Vice President or President, the time period is within 60 calendar days preceding the date of a general election.⁽⁵⁶⁾

While more encompassing than the ban on corporate "electioneering communications" in McCain-Feingold, it is obvious that this "no advocacy" definition of "express advocacy" is the most indefensible attempt to suppress issue advocacy and demonstrates the utter contempt that its drafters and supporters have for the protections for political speech in the First Amendment. Again, as mentioned above, a very similar approach has already been tried and shot down by the federal courts.⁽⁵⁷⁾ Consequently, if passed, Shays-Meehan's "no advocacy" definition of "express advocacy" is dead on arrival in the federal courts.

The weight of authority is indeed heavy; the express advocacy test means exactly what it says. Campaign finance statutes regulating more than explicit words of advocacy of the election or defeat of clearly identified candidates are "impermissibly broad"⁽⁵⁸⁾ under the First Amendment.

VOTING RECORDS/GUIDES SO-CALLED EXCEPTION TO DEFINITION OF "EXPRESS ADVOCACY"

As if to ameliorate some of the constitutional damage caused by its expansive definitions of "express advocacy," Shays-Meehan offers a "Voting Record and Voting Guide Exception" to its definition of "express advocacy."⁽⁵⁹⁾ Actually, it's just more of the same conflation of the express advocacy/issue advocacy distinction. Exempting those voting records/guides "in printed form or posted on the Internet that (i) presents information solely about the voting record or position on a campaign issue of one or more candidates (including any statement by the sponsor of the voting record or voting guide of its agreement or disagreement with the record or position of a candidate" (emphasis added), there is an additional "implied advocacy" qualifier, which voting records/guides must meet, that swallows the "exception":

so long as the voting record or voting guide when taken as a whole does not express unmistakable and unambiguous support for or opposition to one or more clearly identified candidates.

In any race where the candidates take opposing positions on most of the issues presented (which is more often than not), where these contrasts are indicated and the sponsor of the voting record/guide provides its position, along with a characterization of the candidate's position or history as a leader on the issues, or a percentage of agreement with the candidates (including 100% v. 0% where applicable), the voting record/guide is undoubtedly expressing unmistakable and unambiguous support for the views of one of the candidates and against the others. From the point of view of its readers, the voting record/guide could also provide an implicit message to vote for the candidates whose positions on the presented issues are consistent with the sponsor's.

Neither candidates who fare poorly in the voting record/guide nor the FEC will miss the message. Thus, all voting records/guides would be viewed as expressing "unmistakable and unambiguous support" for or against the candidates identified. At best, the new "exception" is vague and leaves the sponsors of voting records/guides with uncertainty as to whether their communications fall under it. This by itself is constitutionally fatal. Applying Buckley's concern to this exception,

[W]hether words intended and designed to fall short of . . . ["unmistakable and unambiguous support" for a candidate] would miss the mark is a question both of intent and of effect. No speaker, is such circumstances, safely could assume that anything he might say upon the general subject would not be understood by some as an invitation. 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 the varied understanding of his hearers and consequently of whatever inference may be drawn as to his intent and meaning.⁽⁶⁰⁾

Shays-Meehan provides another qualifier for its "exception" that, in most cases, swallows it:

[the voting record/guide] is not coordinated activity or is not made in coordination with a candidate, political party, or agent of the candidate or party, or a candidate's agent or a person who is coordinating with a candidate or a candidate's agent, except that nothing in this clause may be construed to prevent the sponsor of the voting guide from directing questions in writing to a candidate about the candidate's position on issues for purposes of preparing a voter guide or to prevent the candidate from responding in writing to such questions . . . .

To understand this qualifier, reference must be made to Shays-Meehan's new definition of "coordinated activity,"⁽⁶¹⁾ which is discussed in greater detail below. It is obvious that voting records/guides would be viewed to be "coordinated activity" under this definition.

Shays-Meehan provides ten different scenarios that constitute "coordination," one of which clearly encompasses the type of communication that is invariably involved between the sponsor of voter guides and candidates mentioned in them:

A payment made [for the cost of preparing, printing and distributing a voter guide] by a person . . . pursuant to any general or particular understanding with a candidate . . . .

It is almost impossible to prepare a voter guide without at least a general, if not a particular, understanding with the candidates being questioned that their answers are being compiled for purposes of a voter guide that will be published during an upcoming election season. Without an understanding along these lines, the sponsor faces a risk of receiving no response at all from the candidates.

In addition, the "coordination" qualifier only allows written questions to the candidates and, thus, prohibits the sponsor from having any oral communication with the candidates so as to ascertain the positions of candidates on issues. As with other provisions of Shays-Meehan, this requirement has already suffered a fatal blow in the federal courts. In Clifton v. FEC,⁽⁶²⁾ the First Circuit struck down the FEC's voter guide regulations which prohibited any oral communications with candidates in preparation of voter guides.⁽⁶³⁾ The court held that this rule is "patently offensive to the First Amendment" and that it is "beyond reasonable belief that, to prevent corruption or illicit coordination, the government could prohibit voluntary discussions between citizens and their legislators and candidates on public issues."⁽⁶⁴⁾ Consequently, Shays-Meehan's exception for voting records/guides is a sham, with such publications fully prohibited by its expansive "express advocacy" definitions.

The weight of authority is heavy; the express advocacy test means exactly what it says. Campaign finance statutes regulating (and all the more so banning) more than explicit words of advocacy of the election or defeat of clearly identified candidates are "impermissibly broad"⁽⁶⁵⁾ under the First Amendment.

BAN ON ISSUE ADVOCACY DURING PREELECTION PERIODS

Other proposed "reforms" have the same objective with respect to issue advocacy as does Shays-Meehan but without redefining "express advocacy." As mentioned above, McCain-Feingold's new term "electioneering communications" would ban corporations and labor unions from engaging in issue advocacy 60 days before a general election and 30 days before a primary election where radio or television is the medium. Like the drafters of the voter guide/record exemption in Shays-Meehan, McCain Feingold also makes a failed attempt to diminish its squelching of political speech by excluding 501(c)(4) tax-exempt corporations from its prohibition.

But since such corporations cannot make any "electioneering communications" with money donated to them by businesses or labor unions, or with funds derived from a trade or business, this provides little solace. As § 501(c)(4) corporations rely, and in some cases quite heavily, on monies donated to them by for-profit businesses and from the sale of goods, the exclusion from the corporate ban on issue advocacy does not mitigate this serious suppression of First Amendment rights.

Here again, this approach has already been tried and shot down by the federal courts. In Michigan, the Secretary of State promulgated a rule that banned corporate and labor union communications made within 45 days of an election that contained merely the "name or likeness of a candidate." Two traditional adversaries, Right To Life of Michigan and Planned Parenthood challenged the rule in separate federal courts and it was declared unconstitutional.⁽⁶⁶⁾ In striking down this rule, the district court held that even if "'express advocacy' is to be measured strictly by the words used or by a more lenient contextual analysis as suggested in Furgatch, . . . . [the rule] does not even pass muster under Furgatch."⁽⁶⁷⁾ Consequently, if passed, this ban, along with the disclosure requirements imposed on non-corporate "electioneering communications," is dead on arrival in the federal courts.

EXPANSIVE DEFINITION OF COORDINATION: LABELS INSTEAD OF FACTS

Under FECA, an express advocacy expenditure that is made "in cooperation, consultation, or concert, with, or at the request or suggestion of a candidate, . . ., shall be considered to be a contribution to such candidate."⁽⁶⁸⁾ Because of this pre-arrangement with the candidate, an explicit endorsement by an otherwise independent group is justifiably tantamount to a contribution to the candidate because it implicates the potential for quid pro quo corruption. This type of pre-arrangement with a candidate is referred to in short hand as a "coordinated" expenditure. An expenditure on express advocacy that is not coordinated with a candidate is termed an "independent expenditure" and cannot be constitutionally limited at all.⁽⁶⁹⁾

As mentioned above, however, "reform" proposals such as McCain-Feingold and Shays-Meehan provide for a sweeping and unconstitutional definition of "coordination" that by mere label drastically limits true independent expenditures. It does this by presuming, without proving, the existence of coordination under certain factual scenarios where it does not necessarily exist.

Under the House and Senate bills, where an organization's independent expenditures are deemed to be "coordinated" with a candidate, a corporation would be prohibited from making them and individuals would limited to spending $1,000 on them, since the communication would be subject to the $1,000 contribution limit to candidates.⁽⁷⁰⁾ This, of course, is an egregious First Amendment violation. If the Constitution forbids Congress from limiting independent expenditures, Congress certainly cannot limit these disbursements by simply attaching a new label to them. Beyond this effect on independent expenditures, the "coordinated activity" definition suffers from the fatal flaw of eliminating the requirement that only "express advocacy" can be deemed coordinated with a candidate.

ELIMINATION OF "EXPRESS ADVOCACY" REQUIREMENT FOR COORDINATION

Again, the Supreme Court has declared that only expenditures on "express advocacy" can be regulated, i.e., communications that in "explicit words" or by "express terms advocates the election or defeat of a clearly identified candidate."⁽⁷¹⁾ Conversely, fully protected issue advocacy is the discussion of issues and candidates' positions on them without expressly advocating their election or defeat. Some "reforms" aim to eliminate this distinction.

Shays-Meehan and McCain-Feingold, for example, explicitly eliminate the express advocacy component of "coordinated" expenditures:

"Coordinated activity" means anything of value provided by a person in coordination with a candidate . . . for the purpose of influencing a federal election (regardless of whether the value being provided is a communication that is express advocacy) . . . .⁽⁷²⁾

Regardless, therefore, of the content of voter records/guides, they are deemed to be an in kind contribution to a candidates if "coordinated" as newly defined. Indeed, under this expansive definition, one need not even mention a candidate. Merely making an expenditure that weighs in on a public policy debate that is also a campaign issue could be considered something "of value for the purpose of influencing a federal election."

PRESUMED COORDINATION

Both bills provides ten different factual instances where "coordination" is presumed.⁽⁷³⁾ For example, if during an election cycle a person making an "independent expenditure" and a candidate employ a common vendor, coordination is presumed. Indeed, unilateral action by the vendor, i.e., providing services to a candidate after an "independent expenditure" had been made on behalf of the same, could convert the "independent expenditure" into a "contribution."

Another instance of presumed coordination would occur if the person making the independent expenditure, in the same election cycle, merely discussed strategy or policy with the candidate concerning his or her decision to seek elective office, or discussed any matter related to the candidate's campaign with the candidate. The same is true for the person making an independent expenditure if he or she also helped raise funds for the candidate benefitted by the expenditure.

These presumptions are fatally infirm because the Supreme Court has held that coordination must be actually proven. In Colorado Republican Federal Campaign Comm. v. FEC, the FEC took the position that party expenditures were presumed to be coordinated with their candidates as a matter of law. The Supreme Court rejected this view: "An agency's simply calling an independent expenditure a 'coordinated expenditure' cannot (for constitutional purposes) make it one. . . . [T]he government cannot foreclose the exercise of constitutional rights by mere labels."⁽⁷⁴⁾ The Court held that there must be "actual coordination as a matter of fact."⁽⁷⁵⁾ Congress, therefore, cannot merely recite some factual scenarios wherein it might be possible, or even probable, that coordination with candidates takes place, and then presume as a matter of law that it has occurred in such instances. To do so, would allow the government to drastically curtail independent expenditures and issue advocacy by mere labels, which, as mentioned above, cannot be constitutionally limited.

BAN ON SOFT MONEY CONTRIBUTIONS TO, AND EXPENDITURES BY, POLITICAL PARTIES

"Soft money" is a term used to describe contributions and expenditures that are not subject to regulation under a particular jurisdiction's election statutes (FECA in this case) such as contributions for, and expenditures on, issue advocacy. Conversely, "hard money" refers to contributions and expenditures subject to regulation such as contributions for, and expenditures on, express advocacy. Some "reformers" believe that the ability of political parties to spend an unlimited amount of money on issue advocacy effecting the parties' own candidates is a gaping loophole that needs to be closed. (This loophole mentality of the "reformers" follows from their failure to accept that the First Amendment provides broad protection to the people to engage in political speech with only one small exception recognized in Buckley.)

What McCain-Feingold and Shays-Meehan effectively regulates, limits or even prohibits with respect to individuals, organizations and some corporations, they both ban with regard to political parties, which, like any other entity, may presently receive and spend an unlimited amount of soft money:

A national committee of a political party . . . shall not solicit, receive, or direct to another person a contribution, donation, transfer of funds, or spend any funds, that are not subject to the limitations, prohibitions, and reporting requirements of this Act.⁽⁷⁶⁾

This same prohibition is imposed on state political parties with respect to "[f]ederal election activity," which, as mentioned above, explicitly encompasses communications that merely "refers to a clearly identified candidate . . . and is made for the purpose of influencing a Federal election (regardless of whether the communications is express advocacy."⁽⁷⁷⁾ The net result is that issue advocacy becomes the exclusive domain of individuals and interest groups void of the tempering effect of political parties. This attempt to limit the free speech rights of political parties is also unconstitutional.

POLITICAL PARTIES ENJOY THE SAME UNFETTERED RIGHT TO PUBLISH ISSUE ADVOCACY

If individuals and narrow interest groups, such as corporations, unions and banks, enjoy the basic First Amendment freedom to discuss issues and candidates in the context of electoral politics, how can political parties, which have wide bases of interests that are necessarily tempered and diffused, be deprived of the right to engage in unfettered issue advocacy. After all, American parties exist to advance a broad array of issues.

Proponents of the idea that issue advertising by political parties ought to be funded entirely or in part with hard money argue that this restriction is simply a "contribution limit."⁽⁷⁸⁾ The fallacy of that argument, of course, is that the Supreme Court has justified contribution limits only on the ground that large contributions create the reality or appearance of quid pro quo corruption, which, as discussed above, cannot justify a limit on issue advocacy.⁽⁷⁹⁾

Furthermore, the proposed ban on soft money contributions cannot be justified on the theory that political parties corrupt federal candidates, which the Supreme Court has already rejected. In Colorado Republican, the FEC took the position that independent, uncoordinated expenditures by political parties ought to be treated as contributions to the benefited candidate.⁽⁸⁰⁾ Such treatment would have resulted in allowing individuals, candidates, and political action committees to spend unlimited amounts of money on independent expenditures to advocate the election of a candidate, while limiting the amount a political party could spend for the same purpose.

The Supreme Court disagreed with the FEC, noting that "[w]e are not aware of any special dangers of corruption associated with political parties. . . ." and, after observing that individuals could contribute more money to political parties ($20,000) than to candidates ($1,000) and PACs ($5,000), and that "FECA permits unregulated 'soft money' contributions to a party for certain activities," the Court concluded that the "opportunity for corruption posed by these greater opportunities for contributions is, at best, attenuated."⁽⁸¹⁾ The Court continued in this vein with respect to the FEC's proposed ban on party independent expenditures, which has direct application to a ban on soft money contributions:

[R]ather than indicating a special fear of the corruptive influence of political parties, the legislative history [of the Act] demonstrates Congress' general desire to enhance what was seen as an important and legitimate role for political parties in American elections. . . .

We therefore believe that this Court's prior case law controls the outcome here. We do not see how a Constitution that grants to individuals, candidates, and ordinary political committees the right to make unlimited independent expenditures could deny the same right to political parties.⁽⁸²⁾

The concurring justices also found little, if any, opportunity for party corruption of candidates because of their very nature and structure.⁽⁸³⁾

The Supreme Court has echoed the same theme with respect to the independent expenditures of political action committees:

The fact that candidates and elected officials may alter or reaffirm their own positions on issues in response to political messages paid for by PACs can hardly be called corruption, for one of the essential features of democracy is the presentation to the electorate of varying points of view.⁽⁸⁴⁾

If this is true of PACs, then a fortiori there can be no corruption or appearance of corruption resulting from issue advocacy by political parties.

In addition, the Supreme Court in MCFL provided further guidance on whether the threat of corruption is posed by an organization such as a political party. The Court considered the ban on independent expenditures by corporations under 2 U.S.C. § 441b. The MCFL Court evaluated whether there was any risk of corruption with regard to an MCFL-type organization that would justify such a ban on its political speech. While MCFL considered whether an ideological corporation was sufficiently like a business corporation to justify the ban on using corporate dollars for independent expenditures, there are several transferable concepts to evaluating the threat of corruption posed by a political party.

The concern raised by the FEC in MCFL was that § 441b served to prevent corruption by "prevent[ing] an organization from using an individual's money for purposes that the individual may not support."⁽⁸⁵⁾ The Court found that "[t]his rationale for regulation is not compelling with respect" to MCFL-type organizations because "[i]ndividuals who contribute to [an MCFL-type organization] are fully aware of its political purposes, and in fact contribute precisely because they support those purposes."⁽⁸⁶⁾ "[I]ndividuals contribute to a political organization in part because they regard such a contribution as a more effective means of advocacy than spending the money under their own personal direction."⁽⁸⁷⁾ "Finally, a contributor dissatisfied with how funds are used can simply stop contributing."⁽⁸⁸⁾

Political parties similarly pose no risk of corruption because people give money to parties precisely because they support what the party stands for. A contribution to a party is for the purpose of enhancing advocacy of the issues the party represents. Any individual unhappy with the use of the money may simply quit contributing and leave the party. In sum, the threat of corruption cannot justify a limit on issue advocacy and, even if it could, political parties pose no threat of corruption to their candidates.

Although the "reformers" correctly wish for comprehensive changes to FECA in order for their "reforms" to effectively work, some members of Congress may be the tempted to adopt a piecemeal approach. This, however, will be circumvented just as a raging river dammed up will find another course. For example, a ban on soft money contributions to, and expenditures by, political parties will be avoided by direct issue advocacy expenditures by corporations, labor unions and other groups. The converse is also true. Banning corporate and labor union issue advocacy will result in increased donations to, and resulting issue advocacy expenditures by, political parties. In short, anything short of far-reaching obliteration of constitutional rights will not be effective.

CONSTITUTIONAL APPROACHES TO CAMPAIGN FINANCE REFORM

Some reforms are definitely needed. Representatives John Doolittle (R-Calif.) and Tom Delay (R-Texas) have provided a genuine reform bill that is also constitutional.⁽⁸⁹⁾ It would (1) repeal limits on individual and PAC contributions to candidates and parties, and party contributions to candidates; (2) terminate taxpayer financing of presidential election campaigns; (3) require parties to distinguish between federal and non-federal funds, and require each state party to file with the FEC a copy of the same disclosure form as it files with the state; (4) require electronic filing of campaign reports, and require them to be filed every 24 hours during the three months preceding an election; (5) require the FEC to post campaign reports on the Internet; and (6) bar acceptance of contributions unless specific disclosure requirements are met.

Given the built-in advantages enjoyed by incumbents, repealing contribution limits would, of course, tend to level the playing field between challengers and incumbents. This may, however, be too much for some members of Congress to swallow. If the Doolittle-Delay bill does not pass, however, there are other measures that still could be taken.⁽⁹⁰⁾

RAISE CONTRIBUTION LIMITS

Contribution limits must be raised substantially if they are to keep pace with inflation. The $1,000 limit on individual contributions to candidates could be raised to at least $2,500 and indexed for inflation. While a $1,000 contribution may have been sufficiently high in 1974 when it was imposed, it would be worth at least $2,500 today.⁽⁹¹⁾ (In addition, the aggregate individual contribution limit could also be raised from $25,000⁽⁹²⁾ to $100,000 and indexed for inflation.) Permitting individuals to make larger and more contributions will enable more individual citizens to run for office, enable all candidates to concentrate on their campaigns, and remove some of the incentives for interest groups to make independent and issue advocacy expenditures.

The individual and multicandidate PAC contribution limits to political parties could be increased from $20,000⁽⁹³⁾ and $15,000,⁽⁹⁴⁾ respectively, to $50,000 and indexed for inflation. These limitations have diminished the relative force of political parties and encouraged them to seek soft money. Strengthening the clout of parties in the election process serves to reduce the relative weight of narrow interests and the likelihood of corruption. Political parties are one of the mediating institutions in the political process that should be permitted to completely fulfill their legitimate political role.

RESTORE THE TAX CREDIT FOR SMALL CONTRIBUTIONS

A provision that would encourage the number of small contributions would be the restoration of the 50% individual tax credit for small contributions. The 1974 FECA amendments provided for a tax credit for political contributions up to $100 but it was repealed in 1986.⁽⁹⁵⁾ The readoption of a tax credit for political contributions up to $500 would provide an appropriate incentive for increasing the level of participation of small contributors in campaign financing.

REPEAL THE COORDINATED EXPENDITURE LIMITS ON PARTIES

Finally, Congress could repeal the limits on the amount of expenditures political parties may coordinate with their candidates.⁽⁹⁶⁾ The Supreme Court all but struck it down in Colorado Republican:

[T]his Court's opinions suggest that Congress wrote the Party Expenditure provision not so much because of a special concern about the potentially "corrupting" effect of party expenditures, but rather for the constitutionally insufficient purpose of reducing what it saw as wasteful spending.⁽⁹⁷⁾

 The plurality of the Court, however, chose not to reach the facial challenge to the Party Expenditure limit, but to remand for further proceedings. The four concurring justices, nonetheless, were quite prepared to strike it down.⁽⁹⁸⁾ Upon remand, the district court also observed that Congress enacted the party expenditure limits for constitutionally inadequate reasons.⁽⁹⁹⁾ Given, however, that the provision was repealed and then reenacted in the aftermath of Buckley, the court ascribed proper motives to Congress and gave the FEC an opportunity to establish the existence of corruption or its appearance.⁽¹⁰⁰⁾ The FEC failed abysmally, and the court declared it unconstitutional.⁽¹⁰¹⁾

Congress should repeal the party coordinated expenditure limits for sound policy reasons as well. As stated above, parties cannot corrupt their own candidates. "There is an identity cultivated by the law and borne out in fact between a political party and a candidate who represents that he or she is of that party."⁽¹⁰²⁾ "'While the various interest groups (and their PACs) usually have one specific goal or concern, political parties represent an amalgam or coalition of interests and goals . . . . The party can't afford to get in a situation that is corrupt or corrupting because the party has to be held accountable, and the party is held accountable through the ballot.'"⁽¹⁰³⁾

These reforms would encourage direct citizen participation in political campaigns, thereby reducing the incentive for indirect involvement through independent expenditures and issue advocacy. The revisions would also ameliorate the disincentives facing potential challengers to incumbents.

CONCLUSION

Issue advocacy in the context of electoral politics enjoys absolute First Amendment protection. The Supreme Court has defined only a narrow scope of non-issue advocacy that can be regulated -- express or explicit words of advocacy of the election or defeat of a clearly identified candidate wherein clear directives such as "vote for . . ." are employed. Congress cannot eviscerate this bright line test with "implied" or "no-advocacy" standards without running afoul of the First Amendment. Further, political parties are not exempt from the enjoyment of this protection and, therefore, cannot be constitutionally forbidden from receiving and expending soft money. Nor is there a need to. Because of their nature, parties are incapable of corrupting their own candidates.

Congress also cannot take away the constitutional right to engage in unfettered issue advocacy and unlimited independent expenditures by simply presuming that coordination with candidates exists. Legislatively created labels cannot obviate the freedom of speech. Many of the "reform" proposals, therefore, will fail the court-ordered test.

Congress could do something constitutional and for sound public policy by scrapping or substantially increasing the contribution limits on individuals and PACs to candidates, and eliminating the limits on political party coordinated expenditures on behalf their own candidates. This would open up the political process to more challengers and enable parties to fulfill their mediating and tempering role in federal elections.

1. James Bopp, Jr., B.A., Indiana University, 1970; J.D., University of Florida, 1973, Attorney, Bopp, Coleson & Bostrom, Terre Haute, IN; Of Counsel, Webster, Chamberlain & Bean, Washington, D.C.; General Counsel, James Madison Center For Free Speech; Chairman, Election Law Subcommittee, Free Speech and Election Law Practice Group of the Federalist Society.

The author thanks attorney Glenn Willard of the law firm of Bopp, Coleson & Bostrom for research and writing assistance.

2. Buckley v. Valeo, 424 U.S. 1, 14-15 (1976) (citations omitted).

3. Comments of House Majority Whip Tom Delay, Money & Politics Report, Bureau of National Affairs, Inc., May 26, 1999, at 1.

4. Id.

5. See statement of Senator Russell Feingold (D-WI) upon the introduction of S. 26: "The prevalence--no--the dominance of money in our system of elections and our legislature will in the end cause them to crumble." Cong. Rec. S422, 423 (daily ed. Jan. 19, 1999).

6. 424 U.S. 1 (1976).

7. Id. at 57; see also Wanda Franz & James Bopp, Jr., The Nine Myths of Campaign Finance Reform, 10:1 Stanford L. & Pol'y Rev. 63 (1998).

8. Cong. Rec. S422, 422 (daily ed. Jan. 19, 1999) (statement of Sen. Feingold upon the introduction of S. 26).

9. 424 U.S. at 43, 44, 80; see also FEC v. Massachusetts Citizens For Life, Inc. 479 U.S. 238, 248-49 (1986) (MCFL).

10. MCFL, 479 U.S. at 249 (quoting Buckley, 424 U.S. at 44 n. 52)

11. Sec. 201.

12. Sec. 201.

13. Sec. 202.

14. Sec. 203.

15. Sec. 307.

16. Id.

17. Shays-Meehan Bipartisan Campaign Finance Reform Act Short Summary prepared by the Offices of Christopher Shays and Marty Meehan, January 1999.

18. So while Congress generally enjoys wide latitude to define most terms (and engage in Orwellian double talk if it wishes), it cannot convert a category of protected speech into speech subject to regulation by artificial definitions.

19. 2 U.S.C. § 441b(a).

20. 2 U.S.C. §§ 431(4), 433-34(a)(b).

21. 2 U.S.C. § 434(c).

22. Sec. 201.

23. Id.

24. See 2 U.S.C. § 441d(a)(3).

25. See 2 U.S.C. § 434(c). In addition, the issue advocacy that would now be deemed by the expansive definition to be express advocacy would be subject to tax assessed by the IRS against a § 501(c)(3) or (c)(4) organization that engaged in it.

26. Buckley, 424 U.S. at 79; MCFL, 479 U.S. at 252 n.6.

27. MCFL, 479 U.S. at 254; see also 2 U.S.C. § 432-34(a)(b).

28. 2 U.S.C. § 441b(a); see also MCFL, 479 U.S. at 256 ff. (voluntary political corporations not subject to corporate ban on independent express advocacy expenditures).

29. MCFL, 479 U.S. at 257 n.10.

30. Buckley, 424 U.S. at 14-15.

31. Id. at 15 (citation omitted).

32. The fact that laws regulate the spending of money on speech, rather than the speech itself, does not change the constitutional calculus. As the Court explained in Buckley,

[a] restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number or issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today's mass society requires the expenditure of money.

Id. at 18-19. Thus, "[b]eing free to engage in unlimited political expression subject to a ceiling on expenditures is like being free to drive an automobile as far and as often as one desires on a single tank of gasoline." Id. at 19 n.18.

33. Section 608(e)(1) limited expenditures by individuals and groups "relative to a clearly identified candidate" to $1,000 per year.

34. Section 431(e) and (f) defined the terms "contribution" and "expenditure" for the purposes of FECA's disclosure requirements in then Section 434(e).

35. Buckley, 424 U.S. at 42-3.

36. Id. at 14 (citation omitted).

37. Id.

38. Id. at 14 (citation omitted) (emphasis added).

39. Id. at 43, 44. To ensure that there was not any confusion about the meaning of "express advocacy," the Court gave examples of such "express terms" -- "'vote for,' 'elect,' 'support,' 'cast your ballot for,' Smith for Congress,' 'vote against,' 'defeat,' 'reject.'" Id. at 44 n.52.

40. Buckley, 424 U.S. at 80; see also James Bopp, Jr. & Richard E. Coleson, The First Amendment is not a Loophole: Protecting Free Expression in the Election Campaign Context, 28 U.W.L.A. Law Rev. 1, 11-15 (1997).

41. MCFL, 479 U.S. at 249 ("We therefore hold that an expenditure must constitute 'express advocacy' in order to be subject to the prohibition in § 441b."); see also id. ("finding of express advocacy depend[s] upon the use of language such as 'vote for,' 'elect,' 'support,' etc.") (citations omitted).

42. Buckley, 424 U.S. at 45.

43. Maine Right To Life Comm., Inc. v. FEC, 914 F. Supp. 8, 12 (D. Me. 1996), aff'd, 98 F.3d 1 (1st Cir. 1996) ("[W]e affirm for substantially the reasons set forth in the district court opinion.").

44. Id. at 43 (citation omitted). While "reformers" often espouse the view that the express advocacy test was intended only to fix the vagueness problem, which this passage addresses, they ignore the Court's confirmation that the express advocacy limitation was also imposed on FECA "to avoid problems of overbreadth." MCFL, 479 U.S. at 248 (citing Buckley, 424 U.S. at 80).

45. Buckley, 424 U.S. at 43 n.50 (citation omitted).

46. Id. at 45 (emphasis added). Some argue that the "express advocacy" test was ill considered by the Supreme Court. Even a cursory review of Buckley refutes this conclusion. The Court reiterated the "express advocacy" test in eight different passages throughout its opinion. 424 U.S. at 43, 44, 44 n.52, 45 (twice), 80 (thrice). Others, contend that the "express advocacy" test is a "magic words" test -- that so long as the words used in Buckley's footnote 52 are avoided, political speakers avoid regulation. Footnote 52 belies this view: "This construction would restrict the application of § 608(e)(1) to communications containing express words of advocacy of election or defeat, such as 'vote for,' . . . ." (Emphasis added.)

47. See North Carolina Right To Life, Inc. v. Bartlett, 168 F.3d 705 (4th Cir. 1999); Virginia Soc'y For Human Life, Inc. v. Caldwell, 152 F. 3d 268 (4th Cir. 1998); Brownsburg Area Patrons Affecting Change v. Baldwin, 137 F.3d 503 (7th Cir. 1998); FEC v. Christian Action Network, Inc., 110 F.3d 1049 (4th Cir. 1997)(CAN II); FEC v. Christian Action Network, Inc., 894 F. Supp. 946 (W.D. Va. 1995), aff'd per curiam, 92 F.3d 1178 (4th Cir. 1996) (CAN I); Maine Right To Life Comm., Inc. v. FEC, 914 F. Supp. 8 (D. Me. 1996), aff'd per curiam, 98 F.3d 1 (1st Cir. 1996) ("[W]e affirm for substantially the reasons set forth in the district court opinion."); Faucher v. FEC, 928 F.2d 468 (1st Cir. 1991); FEC v. Central Long Island Tax Reform Immediately Comm., 616 F.2d 45 (2d Cir. 1980) (en banc); Kansans for Life, Inc. v. Gaede, 38 F. Supp.2d 928 (D. Kan. 1999); Iowa Right To Life Comm., Inc. v. Williams, No. 4-98-CV-10399, (S.D. Iowa Oct. 23, 1998); Florida Right To Life, Inc. v. Mortham, No. 98-770-CIV-ORL-19A (M.D. Fla. Sept. 29) (Order clarified Oct. 16, 1998); Right to Life of Mich., Inc. v. Miller, 23 F. Supp.2d 766 (W.D. Mich. 1998); Planned Parenthood Affiliates of Mich., Inc. v. Miller, 21 F. Supp.2d 740 (E.D. Mich. 1998); Right To Life of Dutchess County, Inc. v. FEC, 6 F. Supp.2d 248 (S.D. N.Y. 1998); Clifton v. FEC, 927 F. Supp. 493 (D. Me. 1996), aff'd on other grounds, 114 F.3d 1309 (1st Cir. 1997); FEC v. Christian Action Network, 894 F. Supp. 946 (W.D. Va. 1995), aff'd per curiam, 92 F.3d 1178 (4th Cir. 1996); FEC v. Survival Educ. Fund, Inc., 1994 WL 9658, (S.D. N.Y. Jan. 12, 1994), aff'd in part and rev'd in part on other grounds, 65 F.3d 285 (2d Cir. 1995); FEC v. Colorado Republican Fed. Campaign Comm., 839 F. Supp. 1448 (D. Colo. 1993), rev'd 59 F.3d 1015 (10th Cir. 1995), vacated and remanded on other grounds, 116 S. Ct. 2309 (1996); West Virginians For Life, Inc. v. Smith, 919 F. Supp. 954 (S.D. W.Va. 1996); FEC v. NOW, 713 F. Supp. 428 (1989); FEC v. AFSCME, 471 F. Supp. 315, 317 (D. D.C. 1979).

48. Sec. 201.

49. 807 F.2d 857 (9th Cir. 1987). Shays-Meehan adopts the first part of Furgatch's gloss on the express advocacy test: "speech is 'express' for present purposes if its message is unmistakable and unambiguous, suggestive of only one meaning." Id. at 864. Shays-Meehan ignores Furgatch's other requirements that the speech (2) "present a clear plea for action" and that (3) "it must be clear what action is advocated." Id.

50. Id. at 858.

51. Id. at 864.

52. Id.

53. The ad in question mentioned President Carter by name, the fact that he was running for re-election, that "[i]f he succeeds," more bad things would happen, and with the plea to action: "DON'T LET HIM DO IT." Id. at 858. This is similar to the express advocacy found in MCFL where the four corners of the communication were considered.

54. CAN II, 110 F. 3d at 1054.

55. See Maine Right To Life Comm., Inc. v. FEC, 914 F. Supp. 8 (D. Me. 1996), aff'd per curiam, 98 F.3d 1 (1st Cir. 1996); FEC v. Christian Action Network, 110 F.3d 1049 (4th Cir. 1997); Kansans for Life, Inc. v. Gaede, 38 F. Supp.2d 928 (D. Kan. 1999); Iowa Right To Life Comm., Inc. v. Williams, No. 4-98-CV-10399 (S.D. Iowa Oct. 23, 1998); Right To Life of Dutchess County v. FEC, 6 F. Supp.2d. 248 (1998). Of course, reliance is invariably placed on Furgatch for the "implied advocacy" test and it is just as repeatedly rejected.

56. Sec. 201.

57. Right To Life of Michigan, Inc. v. Miller, 23 F. Supp.2d 766 (W.D. Mich. 1998); Planned Parenthood Affiliates of Michigan, Inc. v. Miller, 21 F. Supp.2d 740 (E.D. Mich. 1998).

58. Buckley, 424 U.S. at 80.

59. Sec. 201(b). Voting records and voter guides are a traditionally used method for publishing the votes on incumbents in office and to contrast the positions of opposing candidates on issues of concern to the sponsor of the guide or record. The term "voting record" usually refers to a report of the specific votes taken on legislation by incumbent officeholders. A "voter guide" describes the stated positions of competing candidates in response to questions submitted to them by, or discussed orally with, the sponsor of the record/guide. If a candidate refuses to answer the questions submitted, the voter guide often says so and provides the probable response of the candidate based on his or her previous public statements or voting record. The sponsor of the voting record or voter guide typically will also let the reader know its preferred responses. The voting record or voter guide may also tabulate the agreement/disagreement of the incumbents or candidates with the sponsor by percentage, and also may indicate whether an incumbent has been a leader in support of, or in opposition to, the positions of the sponsor.

60. Buckley, 424 U.S. at 43 (citation omitted).

61. Sec. 206(a).

62. 114 F.3d 1309 (1st Cir. 1997).

63. 11 CFR § 114.4(c)(5).

64. Clifton, 114 F.3d at 1314.

65. Buckley, 424 U.S. at 80.

66. Right To Life of Michigan, Inc. v. Miller, 23 F. Supp.2d 766 (W.D. Mich. 1998); Planned Parenthood Affiliates of Michigan, Inc. v. Miller, 21 F. Supp.2d 740 (E.D. Mich. 1998).

67. Right To Life of Michigan, 23 F. Supp.2d at 768.

68. 2 U.S.C. § 441a(7)(B)(i).

69. Colorado Republican Federal Campaign Comm. v. FEC, 116 S. Ct. 2309, 2316 (1996) (Breyer, J., plurality opinion); id. at 2321 (Kennedy, J., Rehnquist, C.J., Scalia, J., concurring in the judgment); id. at 2330 (Thomas, J., Rehnquist, C.J., Scalia, J., concurring in the judgment); see also FEC v. National Conservative Political Action Comm., 470 U.S. 480, 497 (1985); Buckley, 424 U.S. at 47, 51; New Hampshire Right To Life Political Action Comm. v. Gardner, 99 F.3d 8, 18-19 (1st Cir. 1996); Georgia Right To Life, Inc. v. Reid, No. 1:94-cv-2744-RLV (N.D. Ga. Jan. 22, 1996); Common Cause v. Schmitt, 512 F. Supp. 489 (D. D.C. 1980).

70. 2 U.S.C. §§ 441a(a)(1)(A),(7)(B)(i), 441b(a). This is so because a coordinated expenditure is considered an in kind contribution to a candidate subject to FECA's contribution limits.

71. 424 U.S. at 43, 44, 80; see also MCFL, 479 U.S. at 248-49.

72. Sec. 206 (Shays-Meehan); Sec. 215 (McCain-Feingold) (emphasis added).

73. Id.

74. 116 S. Ct. 2309, 2319 (1996) (Breyer, J., plurality opinion).

75. Id. at 2317.

76. Sec. 101 (both bills) (emphasis added).

77. Sec. 101 (both bills).

78. Brief of Amici Curiae United States Senators Carl Levin, John D. McCain and Russell D. Feingold, ODP/RNC v. FEC in the United States Court of Appeals for the District of Columbia, 9 (August 18, 1998).

79. Buckley, 424 U.S. at 45; see also James Bopp, Jr., Constitutional Limits on Campaign Contribution Limits, 11 Regent U. L. Rev. 235 (1998-99).

80. 116 S. Ct. at 2317.

81. Id. at 2316.

82. Id. at 2317.

83. Id. at 2321 (Kennedy, J., Rehnquist, C.J., Scalia, J., concurring in the judgment); see also id. at 2331 (Thomas, J., Rehnquist, C.J., Scalia, J., concurring in the judgment).

84. FEC v. National Conservative Political Action Comm., 470 U.S. 480, 498 (1985).

85. MCFL, 479 U.S. at 260.

86. Id. at 260-61.

87. Id. at 261.

88. Id.; see also Day v. Hollahan, 34 F.3d 1356, 1363-65 (8th Cir. 1994).

89. H.R. 1922.

90. See James Bopp, Jr. and Richard E. Coleson, The First Amendment is Not a Loophole: Protecting Free Expression in the Election Campaign Context, 28 U. West L.A. L.R. 1, 72-78 (1997).

91. Russell v. Burris, 146 F.3d 563, 570 (8th Cir. 1998). Those who take issue with the validity of the Consumer Price Index as a measure to annually increase the contribution limits are reminded that it is used to annually increase the amount that presidential candidates eligible for matching funds may expend, as well as the amounts that may be expended by national and state parties on federal candidates. See 2 U.S.C. § 441a(c)(1). True reformers are open to alternatives.

92. 2 U.S.C. § 441a(a)(3).

93. 2 U.S.C. § 441a(a)(1)(B).

94. 2 U.S.C. § 441a(2)(B).

95. Tax Reform Act of 1986, Pub. L. No. 99-514, 100 Stat. 2085 (1986).

96. 2 U.S.C. § 441a(d).

97. 116 S. Ct. at 2317.

98. See id. at 2321 (Kennedy, J., Rehnquist, C.J., Scalia, J., concurring in the judgment); id. at 2323 (Thomas, J., Rehnquist, C.J., Scalia, J., concurring in the judgment).

99. FEC v. Colorado Republican Federal Campaign Comm., 41 F. Supp.2d 1197, 1999 WL 86840, at *10 (D. Colo. Feb. 18, 1999).

100. Id.

101. Id. at *11 ff.

102. Id. at *13.

103. Id.