TESTIMONY ON BEHALF OF THE
FREE SPEECH COALITION, INC.

By James Bopp, Jr., March 13, 1996
Before the Committee on Rules and Administration, United States Senate

INTRODUCTION

I am James Bopp, Jr., attorney at law, and I appreciate the opportunity to testify before this committee. Today I am appearing on behalf of one of our most interesting clients -- the Free Speech Coalition. The coalition was formed in 1993, by liberal, conservative, and non-ideological advocacy groups, to give voice to the growing concern of issue advocacy groups that federal and state governments have over-regulated and stifled citizens' free speech rights. The Free Speech Coalition is a diverse group of over 50 nonprofits from the American Conservative Union to the Fund for the Feminist Majority; from the National Rifle Association and Gun Owners of America to the Coalition to Stop Gun Violence and the Committee Against Hand Gun Violence; from abortion rights advocacy groups to the client I serve as General Counsel, the National Right to Life Committee.

In this testimony, the Free Speech Coalition joins me regarding the need to minimize the federal regulatory burden on those who want to participate in the American political process, and, in particular, provisions in proposed laws which restrict the ability of nonprofit groups to speak on behalf of their members regarding issues of public concern. It also opposes expanded powers for the Federal Election Commission to threaten such freedom with preemptive injunctions.

The Coalition has sought to oppose state and federal agencies which exceed their statutory mandates, and infringe upon the constitutional rights of the citizens they were formed to serve. Most of its work has been in the area of protecting the freedom of the American people to work through social welfare groups to lobby their elected officials without undue burdens being placed upon them.

As a constitutional attorney heavily involved in election law, I have broad experience in the constitutional aspects of election law and in the approach to free expression and association rights taken by the Federal Election Commission. I have served as lead counsel in numerous election law cases and authored many amicus curiae briefs in election law cases.

My testimony will focus on the need to protect constitutionally-guaranteed free expression and will emphasis three key points, which may be summarized as follows: expression:

(1) robust issue advocacy must be protected by a bright-line test to distinguish issue advocacy from the express advocacy of the election or defeat of a clearly identified candidate,

(2) prior restraints must be avoided, and

(3) the power of the Federal Election Commission must be narrowly circumscribed.

I. Issue Advocacy Must Be Protected.

In proposals for campaign finance reform and efforts by the FEC to regulate elections, the strong First Amendment protection afforded issue advocacy is often ignored. This does not square with the history of strong protection of issue advocacy by the courts.

A. The First Amendment Protects Issue Advocacy Against Any Infringement.

In a series of cases, the United States Supreme Court has drawn a distinction between electioneering, which may be regulated, and other expressions of free speech, including issue advocacy, which enjoy full First Amendment protection.⁽¹⁾ In order to constitute electioneering, as distinguished from issue advocacy, the United States Supreme Court has adopted a bright-line test -- that the communication must "in express terms advocate the election or defeat of a clearly identified candidate for a public office." Buckley v. Valeo, 424 U.S. 1, 44 (1976) (per curiam).

The Supreme Court has long and carefully watched over efforts to regulate political speech in order to ensure that the guarantees of the First Amendment are not denied. This is because such restrictions "limit political expression 'at the core of our electoral process and of First Amendment freedoms.'" Buckley, 424 U.S. at 39 (quoting Williams v. Rhodes, 393 U.S. 23, 32 (1968)). Not only has the Court afforded strong constitutional protection for political speech in general -- including the right to urge the election or defeat of a candidate -- but it has afforded exceptionally strong constitutional protection for issue-oriented speech in particular. As a result, the Court has repeatedly given a narrowing construction to statutes regulating political speech so as to permit prohibition or restriction of only express advocacy, in order to shield the statutes from constitutional attack.

In 1948, the Supreme Court considered the case of United States v. Congress of Industrial Organizations, 335 U.S. 106 (1948) ("C.I.O."). C.I.O. concerned a federal statute prohibiting a corporation or labor organization from making "any expenditure in connection with a federal election." Id. at 106-107 n.1. Under this provision, an indictment was returned against the C.I.O. and its president for publishing, in The CIO News, a statement urging all members of the C.I.O. to vote for a particular candidate for Congress in an upcoming election. Id. at 108. In affirming a dismissal of the indictment, the Court observed:

If § 313 were construed to prohibit the publication, by corporations and unions in the regular course of conducting their affairs, of periodicals advising their members, stockholders or customers of danger or advantage to their interests from the adoption of measures, or the election to office of men espousing such measures, the gravest doubt would arise in our minds as to its constitutionality.

Id. at 121.

A lengthy footnote appended to this statement set forth several passages from case law wherein the Court had declared the specially protected nature of free speech concerning public policy and political matters:

"Free discussion of the problems of society is a cardinal principle of Americanism -- a principle which all are zealous to preserve." Pennekamp v. Florida, 328 U.S. 331, 346 [(1946)].

"The case confronts us again with the duty our system places on this Court to say where the individual's freedom ends and the State's power begins. Choice on that border, now as always delicate, is perhaps more so where the usual presumption supporting legislation is balanced by the preferred place given in our scheme to the great, the indispensable democratic freedoms secured by the First Amendment." Thomas v. Collins, 323 U.S. 516, 529-30 [(1945)].

"For the First Amendment does not speak equivocally. It prohibits any law 'abridging the freedom of speech, or of the press.' It must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow." Bridges v. California, 314 U.S. 252, 263 [(1941)].

C.I.O., 335 U.S. at 121-22 n.21.

However, as the Buckley Court noted, this construction merely refocused the vagueness problem. The real problem, the Court noted, is that

the distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical application. Candidates, especially incumbents, are often 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.

Id. at 42.

Because of the problem described, the Supreme Court settled on the "express advocacy" test set forth in Buckley as marking the line of demarcation between the permitted and the forbidden. This test is constitutionally mandated because only a statute prohibiting the express advocacy of a clearly identified federal candidate has a sufficiently bright line of distinction to make it constitutionally defensible. The Supreme Court, in Buckley, explained the problem with a quotation from Thomas v. Collins, 323 U.S. 516, 535 (1945):

[W]hether words intended and designed to fall short of invitation would miss the mark is a question both of intent and of effect. No speaker, in 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.

Buckley, 424 U.S. at 43.

Thus, the Supreme Court, in Buckley, said that

[t]he constitutional deficiencies described in Thomas v. Collins can be avoided only by reading § 608(e)(1) [placing a ceiling on independent expenditures] as limited to communications that include explicit words of advocacy of election or defeat of a candidate.

Id. Without such a clear line of demarcation, then, a speaker is forced to "hedge and trim" comments made on issues of public importance for fear he will be charged with forbidden electioneering. This is too heavy a burden on First Amendment Rights to be constitutionally permitted. It is noteworthy that, even as so narrowed, the ceiling on independent expenditures at issue in Buckley was struck down as not justified by a sufficiently compelling interest. Id. at 45. Such is the strength of the First Amendment protection of free expression.

The Buckley Court concluded that "[t]he constitutional deficiencies" of such unclear statutory language could only be cured by reading the statute "to apply only to expenditures for communications that in express terms advocate the election or defeat of a clearly identified candidate for a public office." Id. at 44. The Court added that "[t]his construction would restrict the application of § 608(e)(1) to communications containing express words of advocacy of election or defeat, such as 'vote for,' 'elect,' 'support,' 'cast your ballot for,' 'Smith for Congress,' 'vote against,' 'defeat,' 'reject.'" Id. at 44 n.52.

The Buckley Court proceeded to determine whether the statute, "even as thus narrowly and explicitly construed, impermissibly burdens the constitutional right of free expression." Id. at 44. The Court determined that the government could not advance an interest in support of the statute sufficient to "satisfy the exacting scrutiny applicable to limitations on core First Amendment rights of political expression." Id. at 44-45. The Buckley Court expanded on the subject of the First Amendment's powerful protection of political speech:

[T]he First Amendment right to "'speak one's mind . . . on all public institutions'" includes the right to engage in "'vigorous advocacy' no less than 'abstract discussion.'" Advocacy of the election or defeat of candidates for federal office is no less entitled to protection under the First Amendment than the discussion of political policy generally or advocacy of the passage or defeat of legislation.

Id. at 48 (citations omitted) (ellipsis in original).

The Buckley Court also quoted approvingly the comments of the United States Court of Appeals for the District of Columbia, which it affirmed:

"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 more positive efforts to influence public opinion on them, tend naturally and inexorably to exert some influence on voting at elections."

Id. at 42 n.50 (quoting 171 U.S. App. D.C. 172, 226, 519 F.2d 821, 875 (D.C. Cir. 1975)).

In American Federation of State, County and Municipal Employees ("AFSCME"), 471 F. Supp. 315 (D.D.C. 1979), the District of Columbia district court rejected the FEC's contention that a poster qualified as express advocacy on the basis that it contained a clearly identified candidate, "may have tended to influence voting," and "contain[ed] communication on a public issue widely debated during the campaign." Id. at 317. The district court held that this was issue advocacy, not express advocacy, because it contained no express words urging the election or defeat of a clearly identified candidate.

This theme of the strong First Amendment protection afforded issue advocacy was adopted by the United States Court of Appeals for the Second Circuit in FEC v. Central Long Island Tax Reform Immediately Committee ("CLITRIM"), 616 F.2d 45 (2d Cir. 1980) (en banc) (per curiam). The CLITRIM case dealt with whether an organization's failure to report funds expended to publish and distribute a leaflet advocating lower taxes and smaller government violated two statutory provisions. The first provision required "any 'person . . . who makes contributions or independent expenditures expressly advocating the election or defeat of a clearly identified candidate'" in excess of one hundred dollars to file a report with the FEC. CLITRIM, 616 F.2d at 52 (quoting 2 U.S.C. § 434(e)) (emphasis supplied by court). The second provision required "any person who 'makes an expenditure for the purpose of financing communications expressly advocating the election or defeat of a clearly identified candidate' . . . through media, advertising or mailing to state whether the communication is authorized by a candidate . . . ." Id. (quoting 2 U.S.C. § 441d) (emphasis supplied by court).

The CLITRIM court noted "the broad protection to be given political expression," id. at 53, as indicated by the Supreme Court in Buckley, and observed that

[t]he language quoted from the statutes was incorporated by Congress in the 1976 FECA amendments to conform the statute to the Supreme Court's holding in Buckley v. Valeo that speech not by a candidate or political committee could be regulated only to the extent that the communications "expressly advocate the election or defeat of a clearly identified candidate."

Id. (citations omitted). The court further observed that limiting the statutes to reach only express advocacy "is consistent with the firmly established principle that the right to speak out at election time is one of the most zealously protected under the Constitution." Id. (citations omitted).

The CLITRIM court held that

[t]he history of §§ 434(e) and 441d thus clearly establish that, contrary to the position of the FEC, the words "expressly advocating" mean[] exactly what they say. The FEC, to support its position, argues that "[t]he TRIM bulletins at issue here were not disseminated for such a limited purpose" as merely informing the public about the voting record of a government official. Rather the purpose was to unseat "big spenders." Thus, the FEC would apparently have us read "expressly advocating the election or defeat" to mean for the purpose, express or implied, of encouraging election or defeat. This would, by statutory interpretation, nullify the change in the statute ordered in Buckley v. Valeo and adopted by Congress in the 1976 amendments. The position is totally meritless.

Id. (citations omitted) (emphasis in original).

In 1986, the Supreme Court again considered the constitutional protection afforded issue advocacy, in the case of FEC v. Massachusetts Citizens for Life ("MCFL"), 479 U.S. 238 (1986). In MCFL, the Supreme Court considered the contention of Massachusetts Citizens for Life, Inc. "that the definition of an expenditure under § 441b necessarily incorporates the requirement that a communication 'expressly advocate' the election of candidates," relying on Buckley. MCFL, 479 U.S. at 248.

The MCFL Court held that this rationale must be extended to restrictions on independent expenditures. MCFL, 479 U.S. at 249. The Court said that if a ceiling on independent expenditures, at issue in Buckley, had to be construed to apply only to express advocacy of the election or defeat of a clearly identified candidate (in order to eliminate the constitutional deficiencies described in Buckley), "this rationale requires a similar construction of the more intrusive provision [at issue in MCFL] that directly regulates independent spending." MCFL, 479 U.S. at 249.

In Faucher v. FEC, 928 F.2d 468 (1st Cir. 1991), cert. denied sub nom. FEC v. Keefer, 112 S. Ct. 79 (1991), the First Circuit struck down the Federal Election Commission's regulations of voter guides which constituted issue advocacy as being beyond the authority of the FEC under 2 U.S.C. § 441b as interpreted by this Court in MCFL. The regulation at issue, 11 C.F.R. § 114.4(b)(5), required that a voter guide be "nonpartisan," which the FEC defined by six factors which may be considered in determining whether a voter guide is nonpartisan. The factors included consideration of whether a question is worded in a way that supports the position of a candidate on the issue covered and whether an editorial position on the survey questions, or an expression of support for or opposition to any candidate, is included in the voter guide. 11 C.F.R. § 114.4(b)(5)(i)(A)-(F).

The United States District Court for the District of Maine struck the regulations down for trespassing upon constitutionally protected issue advocacy and for reaching beyond the authority of the Federal Election Commission. Faucher, 743 F. Supp. 64 (D. Me. 1990). The First Circuit affirmed the decision of the District Court. Faucher, 928 F.2d 468, declaring that "[t]he first amendment lies at the heart of our most cherished and protected freedoms. Among those freedoms is the right to engage in issue-oriented political speech." Id.

In FEC v. Survival Education Fund, 1994 U.S. Dist. Lexis 210 (S.D.N.Y. 1994), aff'd in part and rev'd in part, 65 F.3d 285 (2d Cir. 1995), the Second Circuit again rejected an FEC attempt to broaden the express advocacy test of Buckley and MCFL. The case involved letters hostile to President Reagan, which were sent out four months before the election, and contained no disclaimer (stating who paid for the mailing and whether it was authorized by any candidate). The FEC argued that the letters constituted express advocacy, but the Second Circuit pointed to the "express words" formula in Buckley and held that:

It is clear from the cases that expressions of hostility to the positions of an official, implying that that official should not be reelected -- even when the implication is quite clear -- do not constitute the express advocacy which runs afoul of the statute. Obviously, the courts are not giving a broad reading to this statute.

Id. at 4.

In FEC v. Christian Action Network, 894 F. Supp. 946 (W.D.Va. 1995), a Virginia district court considered advertisements run during the 1992 election campaign which the FEC considered to be express advocacy of the defeat of presidential candidate Clinton. Because the ads did not contain "explicit words or imagery advocating electoral action," the court held that they constituted protected issue advocacy and not electioneering. Id. at 948.

On February 13, 1996, the United States District Court for the District of Maine declared the latest regulations of the FEC seeking to define express advocacy (11 C.F.R. § 100.22) to be "invalid as not authorized by the Federal Election Campaign Act of 1971, 2 U.S.C. § 431 et seq., as interpreted by the United States Supreme Court in Massachusetts Citizens for Life, 479 U.S. 238, and by the United States Court of Appeals for the First Circuit in Faucher, 928 F.2d 468, because it extends beyond issue advocacy." Maine Right to Life Committee v. FEC, No. 95-261-B-H, slip op. at 12 (D. Me. Feb. 13, 1996) (opinion and order granting declaratory relief). The Maine District Court struck down a definition of "[e]xpressly advocating," id. at 5, which "comes directly from" Furgatch. Id. at 7; FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987). The Maine District Court relied on the fact that, contrary to the Ninth Circuit's decision in Furgatch, the Supreme Court in Buckley and MCFL created a bright-line protection of issue advocacy, "even at the risk that it is used to elect or defeat a candidate." Id. at 10.⁽²⁾

As may be seen, the Supreme Court and other courts have applied strict scrutiny to regulations impinging on pure issue advocacy, and no interest has ever been found sufficiently compelling to justify regulation of issue advocacy. The only interest which is sufficiently high to justify regulation of political speech -- i.e., the avoidance of corruption or the appearance of corruption, see, e.g., FEC v. National Conservative Political Action Committee, 470 U.S. 480, 496 (1985) -- has not been found compelling enough to justify burdening issue advocacy. By its nature, the advocacy of issues is not corrupting. As the Supreme Court said of political action committees in National Conservative Political Action Committee case:

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.

FEC v. National Conservative Political Action Committee, 470 U.S. at 497. If this is true of PACs, then a fortiori there can be no corruption or appearance of corruption resulting from issue advocacy by not for profit issue advocacy groups.

In sum, the Supreme Court has never recognized a compelling interest which would justify regulation of issue advocacy. Rather, it has held that the right to vigorously advocate issues is sacrosanct. Therefore, issue advocacy must be given a sufficiently wide berth to guarantee that advocacy groups and corporations will feel free to exercise their constitutional right of free speech. Buckley, 424 U.S. at 78; CLITRIM, 616 F.2d at 54-55 (Kaufman, Chief Judge, joined by Oakes, Circuit Judge, concurring). Moreover, where government regulates near to this sacrosanct area, it must employ the bright line of demarcation between the permissible and impermissible set forth in Buckley and MCFL.

B. Certain Campaign Proposals Fail to Protect Issue Advocacy.

1. S. 1219.

The Act defines "independent expenditure" as an expenditure containing "express advocacy" made without the participation of a candidate. "Express advocacy" is defined extremely broadly:

18(A) The term "express advocacy" means when a communication is taken as a whole and with limited reference to external events, an expression of support for or opposition to a specific candidate, to a specific group of candidates, or to candidates of a particular party.

(B) The term "expression of support for or opposition to" includes a suggestion to take action with respect to an election, such as to vote for or against, make contributions to, or participate in campaign activity, or to refrain from taking action.

This extremely broad definition of "express advocacy" would sweep in protected issue advocacy, such as voter guides. For example, criticizing a candidate for his or her abortion stand near an election time would fall within the express advocacy definition because it would constitute "an expression of . . . opposition to a specific candidate." This phrase goes far beyond what the United States Supreme Court said was permissible to regulate as electioneering in the case of Buckley v. Valeo, 424 U.S. 1 (1976). In Buckley, the Supreme Court held that in order to protect issue advocacy (which is protected by the First Amendment), government may only regulate election activity where there are explicit words advocating the election or defeat of a clearly identified candidate.

2. H.R. 2566.

The same flaw is found in H.R. 2566, which defines "express advocacy" in the same broad terms in Section 251:

(18)(A) The term "express advocacy" means when a communication is taken as a whole and with limited reference to external events, an expression of support for or opposition to a specific candidate, to a specific group of candidates, or to candidates of a particular party.

(B) The term "expression of support for or opposition to" includes a suggestion to take action with respect to an election, such as to vote for or against, make contributions to, or participate in campaign activity, or to refrain from taking action.

II. As Part of Protecting Issue Advocacy, the "Major Purpose" Test Should Be Expressly Inserted into any New Laws Regulation Elections.

While the Free Speech Coalition has taken no official position on the incorporating the "major purpose" test into any proposed campaign law reform, I would personally propose that the test be added to any proposed legislation. The major purpose test was established in Buckley v. Valeo, 424 U.S. 1, and provides that an organization may not be required to register and do the extensive disclosure and reporting required of political committees unless election advocacy is the major purpose of the organization. Under the major purpose test, if an organization without the major purpose of election advocacy engages in the express advocacy of the election or defeat of a clearly identified candidate, the organization may be required to simply report the expenditure for express advocacy.

The Buckley Court established the major purpose test to protect issue advocacy. It did so in the context of its consideration of

Section [2 U.S.C.] 434(e) [which] requires '[e]very person (other than a political committee or candidate) who makes contributions or expenditures' aggregating over $100 in a calendar year 'other than by contribution to a political committee or candidate' to file a statement with the Commission. [footnote omitted] Unlike the other disclosure provisions, this section does not seek the contribution list of any association. Instead, it requires direct disclosure of what an individual or group contributes or spends.

Id. at 74-75. The Court continued:

In considering this provision we must apply the same strict standard of scrutiny, for the right of associational privacy developed in NAACP v. Alabama derives from the rights of the organization's members to advocate their personal points of view in the most effective way.

Id. at 75. The Supreme Court then considered some vagueness problems, which were problematic because of the impingement on issue advocacy:

When we attempt to define 'expenditure' . . . . Although the phrase, 'for the purpose of . . . influencing' an election or nomination, differs from the language used in § 608(e)(1), it shares the same potential for encompassing both issue discussion and advocacy of a political result. [footnote omitted] 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 amount of annual 'contributions' and 'expenditures,' [footnote omitted] and could be interpreted to reach groups engaged in purely issue discussion. . . . . To fulfill the purposes of the Act they need 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. Expenditures of candidates and 'political committees' so construed can be assumed to fall within the core area sought to be addressed by Congress. They are, by definition, campaign related.

Id. at 79 (emphasis added). The Court concluded:

But when the maker of the expenditure is not within these categories -- when it is an individual other than a candidate or a group other than a 'political committee' -- the relation of the information sought to the purposes of the Act may be too remote." To insure that the reach of § 434(e) is not impermissibly broad, we construe 'expenditure' for purposes of that section in the same way we construed the terms of § 608(e) -- to reach only funds used for communications that expressly advocate [footnote omitted] the election or defeat of a clearly identified candidate." Id. at 79-80. [So construed, the reporting of independent expendsitures is justified by the substantial governmental interest in "shed[ding] the light of publicity on spending that is unambiguously campaign related."]

Id. at 81.

In FEC v. Massachusetts Citizens for Life, 479 U.S. 238, the Court reiterated the major purpose. MCFL, 479 U.S. at 252 n.6; see also id. at 265 (O'Connor, J., concurring), which has also been followed by many lower courts. See, FEC v. Machinists Non-Partisan Political League, 655 F.2d 380, 391-92 (D.C. Cir. 1981)), cert. denied, 454 U.S. 897 . . . (1981); United States v. National Comm. for Impeachment 469 F.2d 1134, 1141-42 (2d Cir. 1972) ("NCFI") (FECA applies only to committees soliciting contributions or making expenditures the major purpose of which is the nomination or election of candidates; "officials will be forced to glean the principal or major purpose of the organizations they seek to have comply with the act" id. at 1142); American Civil Liberties Union v. Jennings, 366 F. Supp. 1041 (D.D.C. 1973), vacated on other grounds, 422 U.S. 1030 (1975) (adopted major purpose test for FECA); FEC v. GOPAC, 871 F. Supp. 1466 (D.D.C. 1994) (holding that "the controlling relevant question is not whether the communication "expressly advocates' the election or defeat of such candidates for federal office, but rather whether, at the times in question, the organization's 'major purpose . . . [was] the nomination or election' of an identified candidate or candidates for federal office." Id. at 1471 (issue was whether an organization was a political committee required to report and register under FECA); FEC v. GOPAC, 95 WL 99284 (D.D.C. Feb. 29, 1996) (order and memorandum granting summary judgment to GOPAC because it was not a political committee because its major purpose was not expressly advocating the election or defeat of a clearly identified candidate for federal office).

III. Prior Restraints Must Be Avoided.

More recently, the Court has stated that: 1) any "system of prior restraints comes to this Court with a heavy presumption against its constitutional validity" and; 2) the Government carries a "heavy burden" to justify enforcing any system of prior restraint. New York Times Co. v. United States, 403 U.S. 713, 714 (1971).

Therefore, the Supreme Court has stated that a prior restraint resulting in a delay in publication "of even a day or two" may be intolerable when applied "to political speech in which the element of timeliness may be important." Carroll, 393 U.S. at 182.⁽³⁾ See also Capital Cities Media, Inc. v. Toole, 463 U.S. 1303, 1304 (1983) ("even a short-lived 'gag' order in a case of widespread concern to the community constitutes a substantial prior restraint and causes irreparable injury to First Amendment interests as long as it remains in effect"). Thus, the reluctance by the Supreme Court to impose prior restraints on speech exists in heightened form in the context of prior restraints on political speech.

A. Certain Campaign Proposals Authorize Prior Restraints.

1. S. 1219.

Despite the unconstitutionality of, and the serious erosion of liberty inherent in, prior restraints, S. 1219 authorizes a prior restraint of free expression. Section 306 authorizes an injunction where there is a "substantial likelihood that a violation . . . is . . . about to occur." Thus, the FEC would be authorized to seek injunctions against communication which, in the FEC's expansive view, could influence an election and which involve an alleged violation of the FECA. Such a preemptive action against speech is an unconstitutional prior restraint and is unconstitutional except in the case of national security or similarly weighty situations. Prior restraint should never be allowed in connection with core political speech. There simply is no governmental interest of sufficient magnitude to justify the government stopping persons from speaking. Because prior restraints of speech are so repugnant to the Constitution, the usual remedy is to impose penalties after the speech is done, if a violation of law occurred in connection with the speech.

If this provision were enacted, the Federal Election Commission would be authorized to pursue injunctions against the political speech of persons or organizations suspected of violating the Act. This means that nonprofit issue advocacy groups would be subject to a prior restraint of their speech, even issue advocacy, on the eve of an important election. Given its history of expansive readings of its powers to regulate constitutionally-protected speech, the Federal Election Commission should never be handed the weapon of prior restraint.

2. H.R. 2566.

In similar fashion, Section 314 of H.R. 2566 would amend Section 309(a) of the Federal Election Campaign Act of 1971 (2 U.S.C. § 437g(a) to authorize the FEC to seek an injunction where there is a "substantial likelihood that a violation . . . is . . . about to occur."

In addition to the constitutional problem of prior restraints, there is a practical problem based on the history of the FEC. The FEC has taken a very expansive view of what constitutes electioneering (which it may regulate) and a very narrow view of what constitutes issue advocacy. Given its history of expansive readings of its powers to regulate constitutionally-protected speech, the Federal Election Commission should never be handed the weapon of prior restraint.

IV. FEC Powers Should Be Narrowly Circumscribed.

The central troubling feature of this history is the FEC's refusal to heed the instructions of the Supreme Court with regard to the constitutional mandate of bright-line protection for issue advocacy. While the Court clearly set out the broadly-applicable express advocacy test in Buckley, the FEC has consistently refused to limit itself to the express advocacy test unless legally compelled to do so. This has led to defeats for the FEC position in numerous cases, as noted above, where the FEC has sought to regulate issue advocacy.

In fact, the FEC's intransigence in complying with free expression rights led Chief Judge Kaufman of the Second Circuit to comment of the FEC, in CLITRIM, 616 F.2d at 53-54 (Kaufman, Chief Judge, concurring), that

[T]he insensitivity to First Amendment values displayed by the Federal Election Commission (FEC) in proceeding against these defendants compels me to add a few words about what I perceive to be the disturbing legacy of the Federal Election Campaign Act (FECA), 2 U.S.C. §§ 431, et seq. . . . Indeed , before Buckley v. Valeo . . . the Supreme Court had emphasized that freedom to criticize public officials and oppose or support their continuation in office constitutes the "central meaning" of the First Amendment. . . . If speakers are not granted wide latitude to disseminate information without government interference, they will "steer far wider of the unlawful zone," . . . thereby depriving citizens of valuable opinions and information. This danger is especially acute when an official agency of government has been created to scrutinize the content of political expression, for such bureaucracies feed upon speech and almost ineluctably come to view unrestrained expression as a potential "evil" to be tamed, muzzled, or sterilized. . . . The possible inevitability of this institutional tendency, however, renders this abuse of power no less disturbing to those who cherish the First Amendment and the unfettered political process it guarantees. Buckley v. Valeo, supra, imposed upon the FEC the weighty, if not impossible, obligation to exercise its powers in a manner harmonious with a system of free expression. Our decision today should stand as an admonition to the Commission that, at least in this case, it has failed abysmally to meet this awesome responsibility.

This willingness to encroach on issue advocacy was evident in FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986), wherein the FEC insisted that the bright-line issue advocacy test of Buckley did not apply to expenditures for voter guides under 2 U.S.C. § 441b, which governs corporate expenditures "in connection with any election." The Supreme Court ruled that the bright-line express advocacy test did apply to this statutory provision, just as it applied to the provision considered in Buckley.

Astonishingly, the FEC did not then incorporate the bright-line express advocacy test in its enforcement of the FECA. Rather, the FEC argued that the reaffirmation of the express advocacy test in MCFL was a mere obiter dictum, not a holding, so that the FEC was not bound by it. The First Circuit rejected this argument in Faucher v. FEC, 928 F.2d 468 (1st Cir. 1991), cert. denied sub nom. FEC v. Keefer, 112 S. Ct. 79 (1991), holding that the bright line express advocacy test of Buckley and MCFL did govern § 441b in order to protect issue advocacy done by nonprofit corporations in voter guides. This eventually forced the FEC to issue new regulations defining express advocacy which were themselves an attempt to subvert the Court's express advocacy test.

Presently, litigation has once again been necessary to challenge the new FEC rules attempting to regulate issue advocacy as if it were express advocacy, an issue already decided in the Faucher case, on the basis of this Court's decisions in Buckley and MCFL.⁽⁴⁾ This despite the fact that Buckley was decided two decades ago and consistently followed by the Supreme Court when presented with opportunities to apply the express advocacy test.

Concomitant with the FEC's desire to regulate issue advocacy is its desire to reject the formulation of the Supreme Court for what constitutes the bright line between issue advocacy and electioneering. In Buckley, this Court construed the statute at issue there (in order to avoid constitutional difficulties) "to apply only to expenditures for communications that in express terms advocate the election or defeat of a clearly identified candidate for a public office." Id. at 44 (emphasis added). The Court added that "[t]his construction would restrict the application of § 608(e)(1) to communications containing express words of advocacy of election or defeat, such as 'vote for,' 'elect,' 'support,' 'cast your ballot for,' 'Smith for Congress,' 'vote against,' 'defeat,' 'reject.'" Id. at 44 n.52 (emphasis added). It is clear from Buckley that a determination of whether a communication expressly advocates the election or defeat of a clearly identified candidate is to be made from the words of the communication itself.

In the case of Colorado Republican Federal Campaign Committee v. FEC, now before the United States Supreme Court on a writ of certiorari (No. 95-489), the FEC once again urges its totality-of-the-circumstances test. This test, adopted from language in the Ninth Circuit in the case of FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987), cert. denied 484 U.S. 850 (1987), looks at the context of a communication to determine if the communication is electioneering. It is important to note that the Furgatch test was decided in, and is rightly applicable to, a very narrow context. Furgatch was about disclosure provisions. The Furgatch court noted this "Court's directive that, where First Amendment concerns are present, we must construe the words of the regulatory statute precisely and narrowly, only as far as is necessary to further the purposes of the Act." Id. at 861. The court then devoted a full page to discussing the importance of disclosure, the purposes served thereby, and the minimal burden imposed by disclosure. Id. at 862. Because it concluded that disclosure "serves an important Congressional policy and a very strong First Amendment interest," and because the burden imposed would be "minimally restrictive," the Ninth Circuit adopted a totality of the circumstances test. Id. Therefore, if Furgatch is good law at all, which is doubtful, it should be limited to its context.

However, the Colorado Republican Federal Campaign Committee case is not about the minimal burden of a disclosure requirement. It is about a prohibition on issue advocacy, such as the Supreme Court considered and rejected with regard to a cap on independent expenditures in Buckley, 424 U.S. at 45-46, and with regard to a bar on issue advocacy by corporations. MCFL, 479 U.S. 238. The FEC would take a rule created by the Ninth Circuit in the context of a minimal-burden disclosure situation and apply it across the board, even in the maximum-burden situation where speech is barred. That is too heavy a burden on the vital freedoms of expression and association to be constitutional.

This totality-of-the-circumstances test was proposed by the FEC in Faucher and rejected by the First Circuit. Faucher v. FEC, 928 F.2d 468. It has now been adopted by the Tenth Circuit in the Colorado Republican Federal Campaign Committee case where the expenditure is coordinated with a candidate. According to the Tenth Circuit, the line between issue advocacy and electioneering is not determined by express words of advocacy, but whether a reasonable person would believe that the communication tended to "diminish" public support for an opposing (unnominated) candidate and "garner support" for one's own possible (though not yet identified) candidate. FEC v. Colorado Republican Federal Campaign Committee, 59 F.3d 1015, 10 (1995). This determination may be made from a totality of the circumstances, not the express words of the communication itself.

The problem with this sort of test is simple: it forces issue advocates to hedge and trim lest the FEC decide, based on circumstances beyond the communication itself (including even those outside the control of the communicator), to bring an enforcement action and seek to demonstrate an intent to electioneer. The bright-line, express advocacy test was imposed by the Supreme Court on the FEC precisely to prevent the burden on First Amendment rights resulting from such vagaries.

However, there is an important point which needs to be made in the context of this testimony focusing on issue advocacy. That point is that abandoning the bright-line approach to protecting issue advocacy will fuel the efforts of those who want to encroach on the right to engage in issue advocacy. Abandoning the bright-line rule of Buckley and MCFL will create a principle that will be built upon to limit vigorous issue advocacy, resulting in loss of First Amendment rights and ongoing litigation. The right of free expression about issues is of such paramount importance in our republic that no encroachment upon it must be permitted. To that end, a bright-line rule is essential.

Finally, a few other cases demonstrate the relentless efforts of the FEC to expand its regulatory powers. In FEC v. National Organization for Women, 713 F. Supp. 428 (D.D.C. 1989), the FEC brought an action against NOW charging that membership solicitation letters discussing issues of pay inequality, abortion, and equal rights constituted express advocacy. The letters at issue expressly criticized the Reagan Administration and the Republican Party. Included in the communication was the following phrase which the FEC found damning: "Politicians listen when they think an organized group of citizens can help elect or defeat them." Another letter criticized by name Senators Helms, Hatch, and Thurmond, and spoke of "a renewed effort now being launched by New Right reactionary groups in preparation for the 1984 elections," which phrase the FEC condemned as electioneering. A third letter made the case for the ERA and condemned President Reagan and named several senators "up for reelection in 1984" who "must be made to understand that failure to pass the ERA will result in powerful campaigns to defeat them." The trial court reviewed the Supreme Court's bright-line express advocacy test, noted that no express words advocating the election or defeat had been used, and granted summary judgment to NOW.

In the case of FEC v. Survival Education Fund, Inc., 65 F.3d 285 (2d Cir. 1995), the Survival Education Fund, Inc. and the National Mobilization for Survival, Inc. were engaged in issue advocacy on environmental issues. Included in the mailing at issue was a letter from Dr. Benjamin Spock, in which he stated that "your special election-year contribution today will help us communicate your views to hundreds of thousands of members of the voting public, letting them know why Ronald Reagan and his anti-people policies must be stopped." The FEC considered this phrase to be express advocacy. Both the district court and the Second Circuit held that the phrase contained no express words advocating the election or defeat of a clearly identified candidate for federal office and so was protected issue advocacy.

Most recently, the case of FEC v. GOPAC, Inc., 1996 WL 99284 (D.D.C. Feb. 29, 1996), amply demonstrates the FEC's refusal to recognize the constitutional protection afforded issue advocacy by the bright-line express advocacy test and the major purpose test which were created to protect issue advocacy. Despite the fact that GOPAC did not have as its major purpose expressly advocating the election or defeat of clearly identified federal candidates, the FEC pushed for a test that would make an organization a political committee if it "engages in 'partisan politics' or 'electoral activity.'" The court rejected this approach and granted GOPAC summary judgment because the test proposed was not that of the Supreme Court in Buckley.

These cases amply demonstrate why the FEC should not be granted additional powers to regulate elections, especially the power to initiate proceedings to obtain prior restraints of free expression on the basis of the FEC's evaluation of whether a challenged communication constitutes a violation of federal law.

1. "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or of the right of the people to peaceably assemble, and to petition the Government for a redress of grievances." U.S. Const. amend. I.

2. It is significant to note that Furgatch was handed down on January 9, 1987, just three weeks after the Supreme Court's decision in MCFL, yet it contains no citations to the MCFL decision, thereby ignoring MCFL's reiteration of Buckley's guidelines for separating express advocacy from protected issue advocacy. Although the FEC has regularly pushed the Furgatch totality-of-the-circumstances test for determining what constitutes express advocacy of the election or defeat of a clearly identified candidate, the Furgatch opinion is highly suspect for its refusal to discuss or distinguish MCFL's reiteration of a bright-line test which looks at the express terms of the communication.

3. This is due to the fact that in politics, "timing is of the essence . . . [w]hen an event occurs, it is often necessary to have one's voice heard promptly, if it is to be considered at all." Shuttlesworth v. City of Birmingham, 394 U.S. 147, 163 (1969).

4. As discussed supra, on February 13, 1996, the United States District Court for the District of Maine declared the latest regulations of the FEC governing issue advocacy (11 C.F.R. § 100.22) to be "invalid as not authorized by the Federal Election Campaign Act of 1971, 2 U.S.C. § 431 et seq., as interpreted by the United States Supreme Court in Massachusetts Citizens for Life, 479 U.S. 238, and by the United States Court of Appeals for the First Circuit in Faucher, 928 F.2d 468, because it extends beyond issue advocacy." Maine Right to Life Committee v. FEC, No. 95-261-B-H, slip op. at 12 (D. Me. Feb. 13, 1996) (opinion and order granting declaratory relief). The Maine District Court struck down a definition of "[e]xpressly advocating," id. at 5, which "comes directly from" Furgatch. Id. at 7; FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987).