Comments of the James Madison Center for Free Speech
Regarding Proposed Rules
on Coordinated Expenditures
Submitted by James Bopp, Jr., General Counsel
and Heidi K. Meyer, Attorney
February 16, 2000
________________________
PRELIMINARY STATEMENT
The James Madison Center for Free Speech takes this opportunity to submit its comments in response to the Supplemental Notice of Proposed Rulemaking Re: General Public Political Communications Coordinated With Candidates published by the Federal Election Commission (FEC) at 64 Fed. Reg. 68951 (Dec. 9, 1999), to be codified at 11 C.F.R. Part 100.23. The James Madison Center for Free Speech requests an opportunity to testify before the Commission at its hearing on these proposed rules, scheduled for February 16, 2000.
Important and significant issues were raised in Federal Election Commission v. The Christian Coalition, 52 F. Supp.2d 45 (D.D.C. 1999), and the Commission's initiative in attempting to provide guidance to the regulated community is to be commended. Furthermore, the time is ripe for the institution of rulemaking regarding coordinated expenditures. Substantial caselaw exists to support and inform the Commission's rulemaking, see Buckley v. Valeo, 424 U.S. 1 (1976); Colorado Republican Federal Camp. Comm. v. FEC, 518 U.S. 604 (1996); Clifton v. FEC, 114 F.3d 1309 (1st Cir. 1997); Christian Coalition, 52 F. Supp.2d 45; FEC v. Public Citizen, 64 F. Supp.2d 1327 (N.D. Ga. 1999), thus making it unnecessary to wait for further caselaw development.
Instituting rulemaking is well-founded for two reasons. First, it is legitimate to limit in-kind contributions to the same limits as direct contributions. If an in-kind contribution is a true coordinated (properly defined) expenditure (properly defined), then it may be properly classified as a contribution subject to direct contribution limits. However, because the decision of whether an expenditure is truly coordinated is a difficult and complicated one, almost invariably leading to an uncertain determination, and the FEC's position has been all over the map, the Commission should provide guidance to the regulated community. Such guidance is particularly important and necessary as the November 2000 election approaches.
Second, instituting rulemaking is salutary because the General Counsel's Office ("OGC") has taken extreme and unconstitutional views when making the two determinations as to whether a coordinated expenditure has occurred. In defining the kind of communication subject to being coordinated, the OGC has employed the "electioneering message" standard. However, various Commissioners and Attorney General Janet Reno have publicly expressed the view that the "electioneering message" standard is not a rule of law, nor is it clear or workable, and is perhaps unconstitutional. See Statement of Reasons of Vice Chairman Darryl Wold and Commissioners Lee Ann Elliott, David M. Mason and Karl J. Sandstrom on the Audits of Clinton and Dole (dated June 24, 1999); Statement for the Record of Chairman Scott E. Thomas and Commissioner Danny L. McDonald on the Audits of Clinton and Dole at 6; In re William Jefferson Clinton: Notification to the Court Pursuant to 28 U.S.C. § 592(b) of the Results of Preliminary Investigation (CCH) ¶ 9429 at 53701 (Dec. 7, 1998).
The OGC has also had three positions regarding the proper coordination standard to be applied, all of which are wanting because they are not rigorous enough. First, the OGC advocated a presumed coordination standard for political party expenditures, which was struck down by the Supreme Court in Colorado Republicans, 518 U.S. 604. Next, the OGC propounded its contact coordination theory, that is, any contact involving voter guides made them coordinated. See Clifton, 114 F.3d at 1316 ("the FEC told the district judge at oral argument that prohibited 'coordination' included seeking an explanation from the representative."). The Clifton court rejected this theory. Id. at 1316-17. The OGC then adopted an opportunity for coordination standard, which was also judicially rejected. Christian Coalition, 52 F. Supp.2d at 90. Providing further support for the assertion that the OGC's definition of coordination has been all over the map, the OGC returned to its contact coordination standard in Public Citizen, 64 F. Supp.2d 1327. Once again, a court rejected the OGC's standard that finds coordination merely from providing information about a candidate's likelihood of remaining in the race until the election and his stand on campaign finance issues, and a subsequent independent expenditure. Id. at 1335.
Uncertainty clouds both determinations required to find a coordinated expenditure. With the demise of the "electioneering message" standard, there is no standard at all regarding what kind of communication is subject to being coordinated. And, as briefly discussed above, the OGC's definition of coordination is all over the map. Therefore, a constitutional regulation needs to be adopted to provide guidance and to remove the chill on the First Amendment rights of the regulated community.
I. FOR ANY NEW RULE TO BE CONSTITUTIONAL AND REMOVE THE EXISTING CHILL ON FIRST AMENDMENT RIGHTS, IT MUST PROPERLY DEFINE WHAT COMMUNICATIONS ARE SUBJECT TO COORDINATION, AND WHAT IS COORDINATION.
As this area is "permeated by First Amendment interests," Buckley, 424 U.S. at 41, "[p]recision of regulation must be the touchstone." NAACP v. Button, 371 U.S. 415, 438 (1963). Precision is necessary to prevent arbitrary and discriminatory application of the law and to protect issue advocacy. Therefore, any new rule adopted must address two crucial definitions. First, it must properly define what communications are subject to coordination. And second, it must properly define coordination.
The definition of what communications are subject to coordination is very important. A proper definition would eliminate the twin Buckley concerns of vagueness and overbreadth that have plagued this part of the coordinated expenditure standard for years.(1) In crafting a proper definition, the Commission is not without guidance. Both Buckley and Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986) support a definition of which communications are subject to coordination as only those containing express advocacy.
Before turning to Orloski, it is helpful to review the purposes of the FECA so that adoption of a statutorily and constitutionally overbroad definition is avoided.(2) A purpose of the FECA is to eliminate the actual or perceived pernicious influence over candidates that wealthy individuals or corporations could achieve by financing "political warchests." Buckley, 424 U.S. at 25-26. Although this purpose indicates that Congress intended to regulate campaign financing, it does not directly speak to any limitations on non-campaign financing.
In Orloski, the FEC argued that, in order for a communication which is coordinated with a candidate to be deemed an "in-kind" contribution, it must contain express advocacy. In determining whether the disbursements at issue constituted in-kind contributions under § 441b, the FEC first examined whether the event in question was a "political event." The FEC set forth the following test:
An event is non-political if (1) there is an absence of any communication expressly advocating the nomination or election of the congressman appearing or the defeat of any other candidate, and (2) there is no solicitation, making, or acceptance of a campaign contribution for the congressman in connection with the event.
795 F.2d at 160. The FEC determined that since no express advocacy occurred at the picnic, the event was "non-political," even though there was issue advocacy coordinated with a candidate. As a result, the disbursements in question did not constitute prohibited "in-kind" contributions under § 441b.
In upholding the FEC's interpretation of § 441b, the D.C. Circuit stated:
[T]he mere fact that corporate donations were made with the consent of the candidate does not mean that a "contribution" within the meaning of the Act has been made. Under the Act this type of "donation" is only a "contribution" if it first qualifies as an "expenditure" and, under the FEC's interpretation, such a donation is not an expenditure unless someone at the funded event expressly advocates the reelection of the incumbent or the defeat of an opponent or accepts money to support the incumbent's reelection.
Id. at 162-63 (emphasis added). The court also found significant that no other statutory language directly or indirectly conflicted with this objective test. Id. at 163.
The view underlying the FEC's interpretation was that the FECA does not prohibit all corporate donations, but only prohibits corporate "contributions and expenditures." Id. at 160. Corporate donations made for non-political purposes were, therefore, permissible. Id. Thus, the FEC adopted the express advocacy requirement for coordinated expenditures because "all congressional events have some political ramifications." Id. (citing United States v. Brewster, 408 U.S. 501 (1972)). Otherwise, corporate donations for non-political purposes would be prohibited because "any corporate funding of congressional events indirectly influences the election." Id. at 163.
In determining what definition to adopt, it would be prudent and sound for the Commission to examine whether the reasons articulated by the FEC in Orloski for the express advocacy requirement still exist, and if they do not, the Commission should explicitly state why they are not present.(3)
As did the court in Orloski, the Commission must look at the proposed rule through the FECA's purposes, and how these purposes are expressed through the statutory language. Id. at 163-64. Thus,
the purposes must be read against the clear statutory language that prohibits some corporate donations, but, by necessary implication, permits others. It becomes readily apparent upon reading the statute and its purposes in this way that Congress left a large gap between the obviously impermissible and the obviously permissible. This gap creates the potential for a broad range of differing interpretations of the Act, the legitimacy of each being heavily dependent upon the degree to which it undercuts the statutory purposes.
Id. at 164.
As FECA's "purposes do not indicate that Congress disapproves of the FEC's interpretation" set forth in Orloski, a definition that requires a communication to contain express advocacy before a coordinated expenditure may be found, is entirely consistent with statutory language.
As noted by the Orloski court, requiring a communication to contain express advocacy before it may be subject to coordination, is also consistent with Buckley, in which the Supreme Court held that under the First Amendment, the phrases "for purposes of influencing any election" and "in connection with any election" must be defined as the "express advoca[cy] [of] the election or defeat of a clearly-identifiable candidate." Orloski, 795 F.2d at 166-67.
The Buckley Court adopted the express advocacy rule to avoid vagueness and remove overbreadth. The Court found that in the absence of a constitutionally-mandated narrowing construction, both of these provisions would be unconstitutional on the basis of vagueness and overbreadth.
With regard to § 608(e)(1) (the $1,000 expenditure limit), the Court found that the phrase "relative to" a clearly-identified candidate was too "indefinite" to "clearly mark the boundary between permissible and impermissible speech." Buckley, 424 U.S. at 41. For the "distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical application." Id. at 42. This follows from the fact that
[c]andidates, 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.
Id. The close relationship between candidates and issues makes the distinction between issue advocacy and electoral advocacy problematic for the speaker; he is placed in a position of doubt, not knowing whether to censor his own speech.
In order to avoid the constitutional deficiencies of vagueness and overbreadth leading to self-censorship, the Court in Buckley held that the statutory expenditure limitations must be "limited to communications that include explicit words of advocacy of election or defeat of a candidate . . . ." Id. at 43. In a parallel definition of its "express advocacy" test, the Buckley Court stated that § 608(e)(1) "must be construed to apply only to expenditures for communications that in express terms advocate the election of defeat of a clearly identified candidate for federal office." Id. at 44. In order to exemplify what it meant by the terms "express" and "explicit" advocacy, the Court stated that
[t]his construction would restrict the application of § 608(e)91) 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 Court characterized the "express advocacy" test as the "exacting interpretation of the statutory language necessary to avoid unconstitutional vagueness . . . ." Id. at 45. In this regard, it is noteworthy that the Court of Appeals in Buckley had attempted to deal with the vagueness problem concerning § 608(e)(1) by reading the phrase "'relative to' a candidate to be read to mean 'advocating the election or defeat of a candidate.'" 424 U.S. at 42. However, the Supreme Court held that "the Court of Appeals was mistaken in thinking that this construction eliminates the problem of unconstitutional vagueness altogether." Id. Thus, the Supreme Court insisted that mere "advocacy" was not enough to bring a communication within the purview of the statutory limitation; rather, the advocacy must be express or explicit.
In considering § 434 (e) of the FECA, a provision which required persons making "contributions or expenditures" in excess of certain levels to report them, the Buckley Court found that the provision defining expenditures as "the use of money or other valuable assets 'for the purpose of . . . influencing' the nomination or election of candidates for federal office" was unconstitutionally vague. Therefore, to obviate the danger that "fear of incurring [criminal] sanctions may deter those who seek to exercise protected First Amendment speech," the Court applied the "express advocacy" test to the phrase "for the purpose of . . . influencing" in the definitions for both "expenditure" and "contribution." For, as the Court noted, that phrase "shares the same potential for encompassing both issue discussion and advocacy of a political result [as did the phrase "relative to" in § 608(e)(1)]." 424 U.S. at 79. However, when limited to "express advocacy," § 434(e) "does not reach all partisan discussion for it only requires disclosure of those expenditures that expressly advocate a particular election result." Id. at 80.
Significantly, in both portions of the opinion in which it applied the "express advocacy" test, the Buckley Court noted the importance of precision and specificity where the regulation of speech is concerned. "The test is whether the language of [the statute or regulation] affords 'the precision of regulation [that] must be the touchstone in an area so closely touching our most precious freedoms.'" Id. at 41. Or, as the Court stated later in the opinion, "[w]here First Amendment rights are involved, an even 'greater degree of specificity' is required." Id. at 77. Thus, it is evident that when it fashioned its definition of "express advocacy," the Court believed itself to be construing the provisions of the FECA precisely, i.e., which the degree of specificity commanded by the First Amendment.
In sum, under the Buckley definition of "express advocacy," disbursements for political purposes are accorded full First Amendment protection as long as they remain outside the narrowly-circumscribed category of "express advocacy." As the Supreme Court summarized, "[s]o long as persons and groups eschew expenditures that in express terms advocate the election of a clearly identified candidate, they are free to spend as much as they want to promote the candidate and his views." Id. at 45.
Thus, the fact that the Buckley Court "formulated these definitions for this statutory language demonstrates that the FEC's similar interpretation of the same language is logical, reasonable, and consistent with the overall statutory framework." Id. at 167. Adoption of the express advocacy requirement in the definition of communication would "only add[] to its reasonableness for it enhances the consistency and even-handedness with which the FEC ultimately administers the Act." Id.
Not only is the definition of what communications are subject to coordination limited to express advocacy statutorily and constitutionally required, the chill that exists from investigations cannot be removed without a bright-line rule. It is proper to take into account the burdens on First Amendment rights that an overly broad definition would impose on organizations in determining whether Congress intended such a result and whether the Constitution allows it. One of those burdens is the investigation necessary to ferret out the alleged "coordinated expenditure," which a narrow definition would ameliorate.
Without a bright-line rule, the FEC is free to conduct incredibly burdensome and intrusive investigations.(4) The investigative process itself "tends to impinge upon such highly sensitive areas as freedom of speech or press, freedom of political association, and freedom of communication of ideas." Sweezy v. New Hampshire, 345 U.S. 234, 245 (1957). This is so, because "[t]he mere summoning of a witness and compelling him to testify, against his will, about his beliefs, expressions or associations is a measure of government interference." Watkins v. United States, 354 U.S. 178, 196 (1957); Sweezy, 354 U.S. at 250. Such disclosures "can seriously infringe on privacy of association and belief guaranteed by the First Amendment." Buckley, 424 U.S. at 64.
The investigation of the Christian Coalition is a dramatic and tragic illustration of the burden and intrusion caused by an investigation that could have been prevented with the simple adoption of the express advocacy requirement. The FEC's investigation of the Christian Coalition spanned six and a half years as the FEC tried to ferret out any evidence of contacts between people associated with the Coalition and various candidates to support its opportunity for coordination standard.
The FEC took 81 separate depositions of 48 different individuals, from the former President and Vice President of the United States and staff members of various campaigns, to past and present Coalition employees and volunteers.(5) The breadth of the FEC's probe into every aspect, past, present, and even future, of the deponents' political activities was mind-boggling. Irrelevant and personal questions were asked of the deponents, including questions about their spouses', family members' (which includes children and in-laws), fellow volunteers', and other individuals' political and religious affiliations, campaign activities, political party activities, candidacies, private business dealings, and legislative and lobbying activities "[b]ecause it's something that we need to know." See Christian Coalition's Memorandum in Support of its Motion for Summary Judgment at 60. This bone chilling statement by one of the FEC attorneys is a harbinger of future FEC investigations if a narrow definition of communication is not adopted.(6)
The Coalition was also required to produce tens of thousands of pages of documents, many of them containing sensitive and proprietary information about finances and donor information. In all, the Coalition searched both its offices and warehouse, where millions of pages of documents are stored, in order to produce over 100,000 pages of documents. Third parties were also required to comply with burdensome FEC document requests and produce irrelevant yet confidential and proprietary information such as polls, surveys, and internal memorandums. The Bush Presidential archivists were required to search through two warehouses full of boxes without the benefit of a catalogue. Such investigations impose substantial burdens on third parties and can have serious adverse consequences.(7) All in all, the investigation was exceedingly burdensome, costing the Coalition hundreds of thousands of dollars in attorneys fees and countless lost hours of work by Coalition employees and volunteers. In Washington, it is often said that "the procedure is the punishment." The Christian Coalition case proves that statement correct. Although the Christian Coalition won every allegation,(8) it was still punished by a burdensome and intrusive investigation. Thus, the Christian Coalition is case-in-point of what happens when there is no bright-line standard to define what communications are subject to being coordinated.
These irrelevant and personal associations and details, which should remain private and hidden from the government and the public in general, are instead "things that the FEC needs to know" in the absence of a bright-line express advocacy requirement. The court in Orloski cogently noted this when it stated that not only could disgruntled opponents harass by taking advantage of a broad standard, but the FEC would be forced
to direct its limited resources toward conducting a full-scale, detailed inquiry into almost every complaint, even those involving the most mundane allegations. It would also considerably delay enforcement action. Rarely could the FEC dismiss a complaint without soliciting a response because the FEC would need to know all the facts bearing on motive before making its "reason to believe" determination.
795 F.2d at 165.
Finally, such a bright-line enables corporations and unions "to easily conform their conduct to the law," id. at 165, which "would not easily be achieved if the FEC adopted interpretations of the Act that were difficult to understand and apply." Id. at 166; id. at 167 ("[I]n this politically-charged area, bright-line tests are virtually mandated even though they may occasionally lead to what appears, at first glance, to be somewhat artificial results.").
An Analysis Of The Proposed Definition Of Communication
The proposed rule defines which communications are subject to being coordinated as those which are "general public political communication[s]." However, as will be shown below, this definitional term has no content and thus carries no power to limit which communications are subject to coordination.
The proposed definition of "general public political communication" is defined as those communications made through various mediums, including broadcasting stations, newspapers, magazines, mailings and electronic mediums, the Internet or web sites, with an intended audience of over one hundred people. Thus, anytime an organization or labor union mentions a clearly identified candidate, they become the potential subjects of an investigation into whether the communication was coordinated. The definition does not define what type of, or what kind of, communications through these mediums are subject to being coordinated. Therefore, any communication distributed through one of the listed mediums that mentions a clearly identified candidate (and is distributed to over 100 people), whether it is non-political or not, falls within the definition of "general public political communication."
The fact that the term "general public political communications" is similar to the term "general public political advertising," which appears in three places in the FECA, does not provide any content to the definition. Assuming a similar meaning, "general public political communications" still does not define what kind, e.g., express advocacy, of "general public political communications" triggers the application of the coordination standard.
That anytime a communication through one of the listed mediums mentions a clearly identified candidate creates a potential investigation, is suggested by the Commission's hypothetical number two. This hypothetical provides a good case study of the quagmire into which protected issue advocacy will sink, because questions regarding whether timing or content matter will always be present.(9)
While it is good to have a narrow definition of coordination, discussed below, a narrow definition of coordination does not remove the chill from an investigation. A narrow definition of coordination only becomes pertinent after an investigation is over and the investigated organization or labor union has been drug over the coals. Put another way, a narrow definition of coordination only defines who is guilty; it does not "narrow" the chill by informing the regulated community how to avoid investigation and subsequent conviction.
In this respect, Judge Green's opinion in Christian Coalition is wrong. While Judge Green agrees that a restrictive standard of coordination is needed, she states that such a restrictive standard will "limit[] the universe of cases triggering potential enforcement actions to those situations in which the coordination is extensive enough . . . without chilling protected contact between candidates and corporations and unions." Christian Coalition, 52 F. Supp.2d at 88-89. But, as we have already seen from the discussion above, a narrow definition does nothing to "limit the universe of cases" when a definition of communication, which lacks any substantial content, has already brought all but a few of the cases into the universe.(10)
To properly "limit the universe of cases triggering potential enforcement actions," the Commission should return to its position in Orloski. Although Judge Green mischaracterized the "proposed benefit of this allegedly 'bright-line' standard" as "largely illusory," Christian Coalition, 52 F. Supp.2d at 88, "bright-line tests are virtually mandated even though they may occasionally lead to what appears, at first glance, to be somewhat artificial results." Orloski, 795 F.2d at 167.
Definition Of Coordination
Regardless of whether issue advocacy, or only express advocacy, is subject to being coordinated, there still remains the need to define coordination in a way that is consistent with the intent of Congress and the demands of the First Amendment. In this regard, the intent of Congress and the principles of the First Amendment coincide. Congress intended, and the First Amendment demands, a narrow view of coordination. Furthermore, there exists a body of law which also suggests that a narrow definition of coordination is required.
In the original 1994 amendments to the FECA, the concept of "coordination" appears only once, in § 608(c)(2)B). This section provided that expenditures "authorized or requested by the candidate" are to be treated as contributions to the candidate subject to the contribution limits in §608(b) (now 2 U.S.C. § 441a). See Buckley, 424 U.S. at 47.
In the revisions of the FECA after Buckley, § 441a was amended. The coordination subsection was revised to provide that "(7) [f]or the purposes of this section . . . (B)(i) expenditures(11) made by any person 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."(12) § 441a(a)(7)(B)(i). The legislative history of this section indicates that, consistent with Buckley, it was intended to distinguish "between independent expression of an individual's views and the use of an individual's resources to aid a candidate in a manner indistinguishable in substance from the direct payment of cash. . . ." S.Rep. No. 677, 94th Cong., 2d Sess. 31, 59 (1976), reprinted in 1976 U.S.C.C.A.N. 946, 974. Thus, this Congressional response to Buckley, if anything, is an even narrower view of an "in-kind" contribution than the 1974 version and suggests that cash equivalents were intended--a rigorous definition of "coordination."
Furthermore, after the Supreme Court's decision in Buckley giving protection to "independent expenditures," Congress amended the FECA to define the term. Under that definition, an independent expenditure is defined as an
expenditure by a person expressly advocating the election or defeat of a clearly identified candidate which is made without cooperation or consultation with any candidate, or any authorized committee or agent of such candidate, and which is not made in concert with, or at the request or suggestion of any candidate, or any authorized committee or agent of such candidate.
2 U.S.C. § 431(17). If an independent expenditure of more than $250 takes place, § 434(c) requires it to be reported to the FEC.
It is clear that the statutory definition of "independent expenditure" is highly speech-protective; it comprises only those expenditures which are themselves made in coordination with a candidate and excludes expenditures as to which there is no specific coordination. In addition, it requires much more than simple "contact" with a candidate to result in coordination. Rather, it makes "independent" any expenditure which is made without actual coordination.
As a result, Congress has clearly signaled its acquiescence to the narrow speech-protective view that the Court, in Buckley, expressed regarding "coordinated expenditures." Expenditures "indistinguishable in substance from the direct payment of cash" are a long way from a mere contact with a candidate regarding a disbursement.
A narrow construction of the definition of "coordination" is necessary because of the demands of the First Amendment.
Furthermore, whether speech, which is otherwise constitutionally protected issue advocacy, is considered "coordinated" and thereby subject to limit or prohibition as a "contribution," has significant constitutional consequence. The Supreme Court has made it clear that the government "cannot foreclose the exercise of constitutional rights by mere labels." NAACP v. Button, 371 U.S. 415, 429 (1963). As a result, "[a]n agency's simply calling an independent expenditure a 'coordinated expenditure' cannot (for constitutional purposes) make it one." Colorado Republican, 116 S. Ct. 2309, 2319 (1996). Thus, any regulation in this area must apply a narrow speech-protective and association-protective definition of coordination.
Limiting the contacts and communications between persons, groups and candidates, as the Commission has proposed to do, however narrowly, is a direct impingement on the freedom of association. The right of association is a "basic constitutional freedom," and any "government action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny." Buckley, 424 U.S. at 25 (citations omitted). This necessitates a narrow definition of coordination.
The Clifton district court also recognized that the distinction between corporate "expenditures" and "contributions" has constitutional dimensions, with contributions subject to limitation. The central question, therefore, was
what happens when a corporation preparing to publish a voting record or a voter guide as a form of issue advocacy contacts the candidate for information or other purposes? Does the publication become a prohibited contribution?
Id. at 496. The answers to these queries are to be found primarily in Buckley.
Buckley's point of departure is the principle that any restriction of the amount of money that can be spent in campaigns is suspect. The Court stated that
[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 of issues discussed, the depth of their exploration, and the size of the audience reached.
424 U.S. at 19. As a result, a regulation which seeks to regulate political spending is subject to a presumption of invalidity.
Contributions, however, were subject to limitation because their regulation "entails only a marginal restriction on the contributor's ability to engage in free communication."
Id. at 21-22. This follows from the fundamental differences between expenditures and contributions. Whereas "expenditures" entail expressive and articulate communications to the public, a contribution to a candidate merely "serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support." Id. at 21. "Contributions" thus are not "political speech," in the same sense as "expenditures," because their communicative effect provides only a "rough index of the contributor's support for the candidate." Id.
Moreover, contributions significantly differ from expenditures in that a limit on contributions does not result in diminishing the quantity of political speech. This is because contributions do not constitute political speech in the same sense as expenditures. As the Court explained,
[t]he quantity of communication by the contributor does not increase perceptibly with the size of his contribution, since the expression rests solely on the undifferentiated, symbolic act of contributing.
Id. Therefore, the Court concluded that
[a] limitation on the amount of money a person may give to a candidate or campaign organization thus involves little direct restraint on his political communication, for it permits symbolic expression of support evidenced by a contribution but does not in any way infringe the contributor's freedom to discuss candidates and issues.
Id.
Therefore, if a broad definition of coordination is adopted, it would sweep in a very broad category of speech and subject it to the prohibition under § 441b. The expressions of corporations and labor unions on issues of public concern would be extensively curtailed. This infringement on a group's "freedom to discuss candidates and issues" necessitates a narrow definition of coordination.
In addition, the Buckley Court found that freedom of association was not unduly infringed by such contribution limitations, because
persons free to engage in independent political expression, to associate actively through volunteering their services, and to assist to a limited but nonetheless substantial extent in supporting candidates and committees with financial resources.
Id. at 28. However, the freedom of association is directly undermined by any expansive definition of coordination, since any contact with a candidate could potentially cut off a person's freedom "to engage in independent political expression" or "to associate actively through volunteering their services."
Thus, in stark contrast to direct financial contributions, allegedly coordinated issue advocacy does not satisfy the Supreme Court's criteria for regulation. As the Clifton district court recognized:
[The contributions which could be limited under Buckley] specifically [are] not the type of spending, call it expenditure or contribution, at stake here in the MRLC's publication of voting records and voting guides. These publications are the MRLC's direct issue advocacy, not the candidate's. Nor is it the mere third-party billpaying for a candidate's media advertisements or a volunteer's incidental expenses that Buckley was talking about when it treated coordinated spending as a contribution under different statutory language. Here, both the disbursements and the speech are direct political speech by the MRLC, not by the candidate. They are thus at the heart of the [Supreme] Court's First Amendment concerns.
927 F. Supp. at 499. Furthermore, the Clifton district court noted that the
regulations challenged here prohibit activities far beyond that which could be understood as a de facto payment of cash (i.e., as asserted by the FEC's counsel at the hearing, even telephone calls to clarify the accuracy of a candidate's position for report in a voter guide fall within the literal prohibition).
Id. n.6. As a result, the Clifton district court held that, under Buckley, the FEC does not have the power to limit corporate spending unless it is (1) actually coordinated with the candidate (as opposed to simply occurring after "contact" with the candidate) and (2) constitutes express advocacy of the election or defeat of the candidate.
Thus, any effort by the Commission to transform an expenditure into a "contribution," so as to afford them lesser protection, totally breaks down when the alleged "in-kind" contribution is a communication that contains issue advocacy. When the Supreme Court stated in Buckley that a contribution limit "entails only a marginal restriction on the contributor's ability to engage in free communication," it is clear that the Court was addressing financial contributions of cash or cash equivalents. Id. at 20-21 ("A cash contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support.") (emphasis added).
In contrast to a financial contribution, issue advocacy does "communicate the basis" for the speaker's support of a particular issue and is thus not symbolic speech, as occurs with a contribution of money or some type of cash equivalent. If viewed as an "in-kind" contribution due to a broad definition of "coordination," issue advocacy would be subject to prohibition. In that event, the speech and association rights of corporations and labor unions would be directly and materially limited. In order to prevent wholesale and unjustified limits on such rights, a narrow view of coordination is necessary.
The Supreme Court in Colorado Republican requires that a disbursement must be actually and specifically coordinated with a candidate to be deemed to be a "coordinated expenditure."
The Supreme Court, in Colorado Republican, 116 S.Ct. 2309, recognized and applied this speech-protective and association-protective rationale to apply a narrow definition of coordination to the Colorado Republican Party's alleged "coordinated expenditures," which were subject to limit under the FECA. Colorado Republican involved the endorsement of § 441a(d) of the FECA (limiting the amount of money that a political party could spend in support of a federal candidate of its party). At issue were certain disbursements made by the Colorado Republican Party for media advertisements to criticize the voting record of the likely Democratic senatorial candidate. One of the pivotal issues in Colorado Republican was whether disbursements for communications (which in that case was for an "advertising campaign") were "independent" and thus immune from limitation under the principles announced in Buckley, or whether they were "coordinated" and thus susceptible to the limitation of § 441a(d) as a coordinated expenditure in support of a candidate.
The Colorado Republican Court looked to justifications for allowing limits on contributions, pointing out that "the Court's cases have found a 'fundamental constitutional difference between money spent to advertise one's views independently or the candidate's campaign and money spent on his campaign.'" Id. at 2315 (quoting FEC v. National Conservative Political Action Comm., 470 U.S. 480, 497 (1985) (NCPAC)). "This difference has been grounded in the observation that restrictions on contributions impose 'only a marginal restriction upon the contributor's ability to engage in free discussion,' . . . and because such limits leave "persons free to engage in independent political expression, to associate actively through volunteering their services, and to assist to a limited but nonetheless substantial extent in supporting candidates and committees with financial resources.'" Id. (quoting Buckley, 424 U.S. at 20-21, 28). "In contrast, the Court has said that restrictions on independent expenditures significantly impair the ability of individuals and groups to engage in direct political advocacy and 'represent substantial . . . restraints on the quantity and diversity of political speech.'" Id. (quoting Buckley, 424 U.S. at 19).
Based on these principles, Justice Breyer, writing for the plurality, found that "the record shows no actual coordination as a matter of fact." Id. at 2317. As a result, the Court "treat[ed] the expenditure, for constitutional purposes, as an 'independent' expenditure, not an indirect campaign expenditure." Id. at 2315. In arriving at this conclusion, the Court's plurality rejected the following factors to demonstrate that "coordination" existed: (1) that it was the party's practice to coordinate "campaign strategy" with the candidate; (2) that the Republican Chairman was "as involved as he could be" with the individuals seeking the Republican nomination; and (3) that the Republican Chairman made available to the candidates "all of the assets of the party." Id. The Court held that these factors did not establish that the disbursements "in fact are coordinated." Id. at 2320 (emphasis in original).
The plurality noted that "[t]hese latter statements, however, are general descriptions of party practice. They do not refer to the advertising campaign at issue here or to its preparation." Id. at 2315 (emphasis added). Thus, a second central feature of the analysis of "independence" of an expenditure for constitutional purposes is that the alleged coordination must relate to the specific disbursement in question. Allegations of a general nature that there was "involvement" between the group making the disbursement and the "campaign," and that there was even knowledge of the candidate's strategy, are simply insufficient to transform an independent expenditure into one which is "coordinated."
Thus, as a matter of constitutional law, Colorado Republican requires "coordination" to be both actual and specifically related to any disbursement alleged to be an "in-kind" contribution. A lax interpretation of that term treats a group's speech as the candidate's, thereby suppressing it, regardless of whether the alleged "coordination" occurred "in fact" and with reference to the specific disbursement in question.
In Clifton, the First Circuit held that "contact" between candidates and speakers cannot constitutionally be deemed "coordination."
In Clifton, plaintiff Maine Right to Life Committee (MRLC) brought a pre-enforcement, facial challenge to two FEC regulations which purported to regulate the manner in which corporations were permitted to publish "voter guides" and "voting records" in connection with federal elections. Although the district court had premised its rejection of the regulation on its violation of the "express advocacy" test, the First Circuit held the regulation invalid on broader constitutional grounds. In particular, it held that the provision of the FEC regulation which placed a "limitation on oral contact with candidates" was "patently offensive to the First Amendment," 114 F.3d at 1314, because it
treads heavily on the right of citizens, individual or corporate, to confer and discuss public matters with their legislative representatives or candidates for such office. As we have explained, the regulations bar non-written contact regarding the contents, not merely the distribution, of voter guides and voting records; thus, inquiries to candidates and incumbents about their positions on issues are a precise target of the FEC's rules as applied here.
Id. Indeed, as the First Circuit went on to state,
the chilling effect of such a restriction would extend well beyond any discussion directed to a particular voter guide; any inquiry . . . to a local representative or candidate regarding his or her position on such issues would be vulnerable even if no mention whatever were made of any voter guide.
Id. n.3 (emphasis in original; citation omitted). For this reason,
we think 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.
Id. In short, "it is no business of executive branch agencies to dictate the form in which free citizens can confer with their legislative representatives." Id.
Thus, in order to advance the speech-protective and association-protective rationales of the Court in treating contributions differently than expenditures, a narrow definition of coordination is necessary. From Colorado Republican, it is clear that coordination must have occurred in fact and must have related specifically to the disbursement in question. Furthermore, mere contact between a corporation or labor union and the candidate regarding the disbursement is not enough. Bona fide coordination must have taken place.
In Christian Coalition, the court noted that "because 'coordination' marks the constitutional dividing line between corporate contributions subject to prohibition and protected issue-oriented expenditures, that line ultimately is drawn by reference to the First Amendment, not the Act." 52 F. Supp.2d at 90. Thus, "the prohibition on such expenditures must be narrowly tailored." Id. Rejecting the FEC's "insider trading" or conspiracy approach, the court found that
[t]he FEC's tidy distinction between discussion of campaign strategy and mere lobbying is cold comfort for those who seek to discuss with a candidate an issue that is at the time dominating the campaign. Indeed, the record in this case demonstrates that a candidate's decision when to take a stand, where to stand, and how to communicate the stand on a policy issue often are integral parts of campaign strategy. The facts further demonstrate that a candidate frequently listens to the concerns of sympathetic constituencies or factions before making those important strategic decisions. While the FEC's approach would certainly address the potential for corruption . . . it would do so only by heavily burdening the common, probably necessary, communications between candidates and constituencies during an election campaign.
Id. Continuing, the court stated that the FEC's broad approach "heavily burden[ed] communications leading up to the expenditure," and more importantly, "it also neglects the fact that expressive coordinated expenditures contain the political speech of the spender; more than the 'speech by proxy' involved in a cash contribution." Id. at 91 (citing Colorado Republican, 518 U.S. at 638-39 (Thomas, J., dissenting)). Thus, coordinated expenditures "contain the highly-valued political speech of the spender." Id. (citing Colorado Republican, 518 U.S. at 624; Clifton, 114 F.3d at 1325 (Bownes, J., dissenting)). Consequently, a narrow definition of coordination is required so that "the spender should not be deemed to forfeit First Amendment protections for her own speech merely by having engaged in some consultations or coordination with a federal candidate." Id.
Also applying a narrow definition of coordination, the court in FEC v. Public Citizen, 64 F. Supp.2d 1327 (N.D. Ga. 1999), found that providing information as to the candidate's likelihood of remaining in the race through the election, and the candidate's stand on campaign finance issues, did "not rise to the level of consultation or coordination between the parties" because "it would have been absurd for Public Citizen to expend funds in a campaign to defeat Rep. Gingrich if there were no candidate opposing him." Id. at 1335. Coordination, then, "implies 'some measure of collaboration beyond a mere inquiry as to the position taken by a candidate on an issue.'" Id. (quoting Clifton, 114 F.3d at 1311 (citing Buckley, 424 U.S. at 46-47 & n. 53)).
Shortly after the decision in Public Citizen, a district court again refused to apply a broad definition of coordination proferred by the FEC. FEC v. Freedom's Heritage Forum, No. 3:98CV-549-S, slip op. (W.D. Ky. Sept. 29, 1999). Refusing to find that any coordinated expenditure had been made, the court stated that "[t]he FEC does not allege that Hardy actually informed Dr. Simon of his plans, projects, or needs with a view toward having an expenditure made." Id. at 4 (emphasis in original). Applying a narrow definition of coordination, the court found that a spender's mere presence at a meeting during which campaign strategy was discussed, and the providing of information about a candidate's plans, projects and needs, was insufficient to transform independent expenditures into coordinated ones. Id.
The reason for a narrow definition is to guarantee the freedom to speak on issues of political concern. Conceptually, there is a difference between one's own speech and what the Court has called "speech by proxy." Buckley, 424 U.S. at***cite. When the speech is one's own, it is fully protected under the First Amendment.
The conceptual evil to be avoided then, is in treating one's own speech as "speech by proxy," thus removing constitutionally mandated protections. It is important, then, to recognize that, in the portions of the Buckley opinion discussing the FECA's limits on contributions,(13) the Court is speaking of contributions in the ordinary sense, that is, direct financial donations to candidates. However, the Court recognized that "in-kind" contributions (i.e., "the expenditure of resources at the candidate's direction," id. at 36) can implicate the same concern with quid pro quo corruption, as do direct financial contributions. For the "ultimate effect" of such in-kind contributions
is the same as if the person has contributed the dollar amount to the candidate and the candidate had then used the contribution to pay for the fundraising event or the food.
Id. at 36-37. Thus, "in-kind" contributions could be subject to the FECA's limits on contributions, under § 441a, because "treating these expenses as contributions when made to the candidate's campaign . . . forecloses an avenue of abuse," 424 U.S. at 37, and limiting such in-kind contributions do not "limit[] actions voluntarily undertaken by citizens independently of a candidate's campaign." Id. Thus, in-kind contributions may be constitutionally limited because they are in substance, if not in form, the equivalent of direct financial contributions.
Like in-kind contributions and direct financial contributions, expenditures which are both coordinated with a candidate and which expressly advocate his or her election (or the opponent's defeat) may be treated for constitutional purposes as contributions. However, it is obvious from the discussion in Buckley that the Court was referring to coordinated expenditures as a term of art as defined in Buckley, i.e., when applied to a communication, it must contain express advocacy, since the Court had just construed the statute under discussion, § 608(e)(i), to include only express advocacy communications. 424 U.S. at 44. Furthermore, the example used by the Court refers to an express advocacy communication. See id. at 46 n.53 ("'[A] person might purchase billboard advertisements endorsing a candidate.'" (quoting S.Rep. No. 93 689, p. 18 (1974), U.S.Code Cong. & Admin News 1974, p. 5604 (emphasis added)).
Therefore, it is very clear from Buckley that the Commission may not regulate one's own speech unless it crosses the line and becomes an in-kind contribution. However, without a narrow definition of coordination, the Commission is treating someone's own speech as "speech by proxy" when it is clearly not. Even when one's own speech is express advocacy, it is still one's own speech and thus protected. Only by a narrow definition is the Commission justified in treating my speech as that of a candidate's.
The Commission's Hypotheticals
Neither of the hypotheticals posed by the Commission should be subject to an investigation. As to the second hypothetical, the first part contains no express advocacy. Yet, because the candidate appeared in the the ad, it was coordinated with the candidate. The addition to the hypothetical, "Please support Senator William Moore!" also does not contain express advocacy. The word "support" is ambiguous because it could mean "support" FDIC institutions and the Senator's efforts to ensure the safety of deposits, or "support" Senator Moore by voting for him.
Under either part of the hypothetical, a coordinated expenditure could arguably be found under the Commission's proposed rule. Both ads in the hypothetical mention a clearly identified candidate and are distributed through television to an audience of over 100 people, a medium defined in "general public political communication." Both ads necessarily involved "collaboration or agreement" as to the ads' timing, location, mode, and intended audience, with the Senator exercising control over such content, timing, location, etc. The exception contained in the proposed rule does not take this communication outside the definition of a coordinated expenditure because there is no mere inquiry regarding legislative or public policy issues.
The first hypothetical also demonstrates the effect of the proposed coordination regulations. Like the second, this hypothetical also contains no express advocacy and is coordinated with the candidate. ***
The far-reaching effect of the proposed coordination regulations can be seen in a simple addition to the Commission's first hypothetical.(14) Continuing with the hypothetical, assume that the supporter(15) is also the head of a corporation (or labor union) that does a fully pre-planned independent expenditure after this meeting. The supporter tells the candidate that his corporation (or labor union) is doing an independent expenditure, the details of which have already been planned, to which the candidates replies, "that's fantastic! I need that!" Under the proposed regulation, this corporation or labor union would find itself the subject of an investigation to determine whether the expenditure was really independent or whether it was coordinated. And under the proposed regulations, the expenditure would be deemed coordinated because there was an agreement,(16) i.e., the candidate's statement, even though the corporation's (or labor union's) independent expenditure was not changed or tailored in any way to the needs or suggestion of a candidate.
As the Commission's hypotheticals and the addition show, the Commission is prohibiting citizens from petitioning the government. Thus, a narrow definition of coordination is needed. ***comment on hypos in context of our critique of the proposed regs***
The geographic limit does not address any of the problems created with a broad definition of coordination. The geographic limit has nothing to do with coordination; the essence of coordination is a meeting of the minds. The problem - the burdening of grass roots lobbying - still exists even with the geographic limit.
The impact of the proposed regulations on grassroots lobbying will be increased dramatically as grassroots organizations increase their use of the Internet for their lobbying activities. This medium, which provides almost unlimited opportunities for increased petitioning by individuals, is inexpensive to use and enables organizations to quickly inform others of issues affecting them. For this, and other reasons, see Comments of the James Madison Center for Free Speech regarding the Notice of Inquiry ****, any proposed regulations on coordinated expenditures should except Internet activities.
However, a narrow definition of coordination, without a bright-line definition of communication, is of no guidance to the regulated community because only a few, if any, corporations or labor unions are willing to suffer an investigation as the price of doing constitutionally protected petitioning of the government.
Neither of the hypotheticals posed by the Commission in the Supplemental Notice address the real problems that arise when this proposed regulation are applied to grassroots lobbying. The following two hypotheticals are designed to demonstrate how the application of this proposed regulation will cause protected lobbying and issue advocacy to be deemed coordinated.
Congressman Henry Hyde Hypothetical
Congressman Henry Hyde is running for Senate against an incumbent Democrat who is pro-choice. A vote is scheduled during the general election period in the Senate on the Hyde Amendment (an amendment to the medicaid appropriations bill limiting funds for abortion). A pro-life group wants to do grassroots lobbying in Illinois to encourage individuals to urge the Democrat senator to support the Hyde Amendment. Since the early 1970's, this pro-life group has worked hand-in-glove with Congressman Hyde in support of the Hyde Amendment and coordinated grassroots lobbying for the same number of years. The strategy to obtain passage of the Hyde Amendment is also coordinated with the Congressman.
Now, Congressman Hyde is running for the Senate. The pro-life group would like to distribute communications criticizing the Democrat senator for his prior opposition to the Hyde Amendment and encouraging people to call him and urge him to vote for the Amendment.
President Clinton and the Partial Birth Abortion Act Hypothetical
In 1996, President Clinton vetoed the Partial Birth Abortion Act. The veto had been overridden in the House, and voted on in the Senate in late September, prior to the election. Throughout the process, including the effort to sustain the veto, President Clinton worked closely with pro-choice organizations and their legislative and grassroots lobbying groups.
These pro-choice organizations want to build public support for the veto through grassroots lobbying. Their communications, which praise President Clinton for the veto, are run in various states where Republican incumbent senators are up for reelection. These communications also condemn those senators for their support of the bill, and urge them to change their vote and sustain the veto.
An Analysis Of The Hypotheticals Under The Proposed Regulation
As to the first hypothetical, the communication is likely to be viewed as coordinated and a benefit to Congressman Hyde's campaign. *** At the same time, it is absolutely pure grass roots activity.
As to the second hypothetical, there is double coordination -- a benefit to President Clinton's campaign because he is praised, and, because President Clinton is the head of the Democratic Party, it is a contribution to the Democrat senators running against the Republicans being criticized.
The only way to get these two hypotheticals out from under the overly broad proposed regulation is by inclusion of the express advocacy standard within the definition of communication. Otherwise, the right to petition the government is swept under the rubric of an in-kind contribution. ***
Comments on Alternative 2
Alternative 2 is read as containing three different ways to define coordination, paragraph (c)(1-3), with only the presence of one necessary for coordination. ***
There are two key elements to a proper definition of coordination. The first is that the coordination is regarding a specific activity in question, because "discussion of campaign strategy and discussion of policy issues are hardly two easily distinguished subjects." Christian Coalition, 52 F. Supp.2d at 90. Second, negotiation must result in a change in the spender's activity. There is no coordination if the spender does not do as the candidate suggests, or if the spender is already doing the specific activity requested by the candidate. This element can easily be defined as a communication that is made, but/for the request or suggestion of the candidate would not have been made. To encompass coordination of details of a communication, this element could be defined as details, such as timing or content, that are changed or altered as a result of the request or suggestion of a candidate.
While Alternative 2-B for paragraph (c)(1) contains the first key element, coordination regarding a specific activity in question, Alternative 2-A does not. "Candidates, especially incumbents, are intimately tied to public issues involving legislative proposals and governmental actions." Buckley, 424 U.S. at 249. Thus, without this element, Alternative 2-A "sweeps in all attempts by corporations and unions to discuss policy matters with the candidate while these groups are contemporaneously funding communications directed at the same policy matters." Christian Coalition, 52 F. Supp.2d at 90 (comparing Clifton, 114 F.3d at 1313). Thus, Alternative 2-A should be rejected by the Commission.
Although Alternative 2-B has a narrower "candidate affirmative action" requirement(17) than Alternative 2-A, both are too broad. The phrase "collaboration or agreement" in Alternative 2-A, and in the beginning of Alternative 2-B, does not contain the second key element. Under (c)(1), a communication is deemed coordinated if an organization simply tells a candidate that it is distributing "x" number of voter guides and the candidate states, "great!" Such a reply by the candidate would be an "agreement." The telling of plans does not constitute coordination. Thus, the reason for the second element - requiring an organization to change its position and do something it was not otherwise going to do, or tailor its activity to the needs or suggestion of a candidate - is readily apparent. "Collaboration or agreement" is too broad. A proactive requirement is necessary. ***insert Comments at 39plus.
Subsection (c)(2) is a proper definition of coordination. ***insert why
The focus of subsection (c)(3) is wrong. Subsection (c)(3) appears to be similar to subsection (c)(3), with the substitution of "substantial discussion or negotiation" for "at the request or suggestion of, or authorization by." The substitution of "substantial discussion or negotiation" does not add any further narrowing that subsection (c)(1) does not already provide. Subsection (c)(3) is thus redundant. There is necessarily "substantial discussion or negotiation" if there is a request or suggestion under (c)(1), or if control is exercised under (c)(2).
The focus of this subsection is wrong because "substantial discussion or negotiation," or how many meetings are had, is not relevant to a determination of coordination. What is relevant is the result that flows from the discussion or negotiation. This section is therefore overbroad because it focuses on the discussion itself, rather than the result flowing from the discussion.
The last sentence of subsection (c)(3) confirms the incorrect focus of this option of defining corruption. With this sentence, the Commission is defining what constitutes "substantial discussion or negotiation." However, the problem with this sentence is that the Commission is using "substantial discussion or negotiation" to define coordination as the amount of discussion, rather than the result flowing from a discussion. Judge Green's opinion does not support such a definition.
In examining what was required for coordination, Judge Green used "substantial" to modify the content of the discussion; the discussions had to be about the details of the communication, i.e., contents, timing, location, mode, choice of medium, or volume. Otherwise, such an approach "sweeps in all attempts by corporations and unions to discuss policy matters with the candidate while these groups are contemporaneously funding communications directed at the same policy matters." Christian Coalition, 52 F. Supp.2d at 90 (comparing Clifton, 114 F.3d at 1313). Thus, "substantial discussion or negotiation" does not relate to the amount of discussion, but whether "the candidate and spender emerge as partners or joint venturers in the expressive expenditure," id., as a result of the content of their discussion(s).
Subsection (d), as a matter of policy, is a proper exception. However, it is totally unnecessary for the same reasons that subsection (c)(3) is. The focus on this exception is also on the amount of the discussion, rather than the result of the discussion. But, more importantly, this exception is pernicious because it subtly suggests that communicating with a candidate is bad.
Subsection (e), the definitions section, suffers from two of the infirmities already discussed above. The definition of "general public political communications," is troublesome because it only defines communications subject to be coordinated as limited to specified mediums. There is no definition regarding content, that is, what kind of communications may be coordinated. The definition of "general public political communications" should define communications with reference to the express advocacy standard set forth in *** CFR ***.
CONCLUSION
These comments have shown that the Commission has still not pulled the thread that has continued to run through its proposals -- that spending money for communications which comment on issues of public concern is presumptively evil if such communication might influence an election. Every political communication is suspect; every political speaker is a potential lawbreaker. The proposed rule represents an approach to free speech that is inimical to that of the First Amendment.
This regulation is predicated on the belief that "coordination" is lurking in every corner, and in order to apprehend these malefactors, a dragnet must be established. Thus, through one regulatory device or another, virtually all communications become subject to being coordinated.
Issue advocacy by corporations and labor unions does not corrupt our democracy
1. The FEC has had a mistaken idea of its power to regulate disbursements for communications which do not "expressly advocate" the election or defeat of a clearly identified candidate. The FEC cannot regulate them merely by labeling them "contributions" (as opposed to "expenditures"). Rather, under Buckley, all disbursements for communications (whether deemed "expenditures" or "contributions") are protected by the "express advocacy" test. This is clear from the fact that the Buckley Court developed the "express advocacy" test to obviate the "ambiguity" of the prhase "for the purpose of . . . influencing" which appeared in the definitions of both "contributions" and "expenditures." Buckley, 424 U.S. at 78-79. Therefore, under Buckley, a disbursement for a communication is immune from regulation unless it constitutes "express advocacy." This is so whether or not it is coordinated with a candidate. Indeed, no regulation disbursement for political speech can be regulated in the absence of a compelling government interest. As Buckley and its progeny make clear, there is no compelling interest in the regulation of issue advocacy. This follows ineluctably from the fact that issue advocacy does not result in the threat of quid pro quo corruption, the prevention of which is the only compelling interest for restricting campaign finances. Federal Election Commission v. National Conservative Political Action Committee, 470 U.S. 480, 496-97 (1985).
2. The Commission must endeavor to implement rules consistent with the FECA's underlying, constitutional, statutory purposes and language. Careful consideration of the FECA's purposes are important then, because "'[t]he invocation of disembodied purposes, reasons cut loose from language is a sure way to frustrate rather than to implement the statute.'" Orloski v. FEC, 795 F.2d 156, 164 (D.C. Cir. 1986) (quoting Walton v. United Consumers Club, Inc., 786 F.2d 303, 310 (7th Cir. 1986)).
3. Prior to Orloski, the FEC had consistently adhered to this bright-line interpretation for at least eight years, adopting it shortly after Buckley was handed down. 795 F.2d at 166.
4. If the communication did not contain express advocacy, a relatively simple inquiry, no further investigation would be necessary. Thus, in a large number of cases, the inquiry would end there. Only if the communication contained express advocacy would any further investigation be appropriate.
5. Being subject to a deposition can be very burdensome for many of the deponents, especially third parties who do not even know why they are being questioned. For example, one deponent asked, "[b]ut why am I here? I have no connection to the Christian Coalition, none whatsoever, and there is no reason." MUR Deposition of Michael Hamlet at 73. Another deponent stated the practical effects of intrusive investigations upon organizations and unions, "I'll get this thing going for [the Coalition] and that's it. Here I am today before you-all thanks a lot. Never volunteer for anything." MUR Deposition of Patrick Gartland at 86 (emphasis added).
6. Another target of an FEC investigation into alleged coordinated expenditures echoed these concerns. According to Herman Clark, "once he had lost the primary and then spent four years embroiled in an FEC investigation, he did not have the resources to engage in protracted litigation with the FEC and wanted to put the matter behind him." Public Citizen, 64 F. Supp.2d at 1334 (citation omitted).
7. Former Secretary of State, James Baker, a third party deponent, who realized long ago how burdensome and intrusive government investigations can become, remarked, "I don't prepare written summaries because somebody like you will come along and want to subpoena them." Deposition of James Baker at 67-68. Robert Teeter, the chairman of the Bush-Quayle committee, stated that personal notes were no longer routinely kept, not even for historical purposes because of "too many of these sessions." June 17, 1997 Deposition of Robert Teeter at 63-64. "And there's less historical records today than there's ever been . . . . [N]obody keeps any of that stuff." Id. at 64.
8. The Supplemental Notice of Proposed Rulemaking states that the court in Christian Coalition "found coordination where the Coalition provided a Senate campaign consultant with a commercially valuable mailing list." Fed. Election Camp. Fin. Guide (CCH) ¶ 9453 at 53,842. However, this contribution was a classic in-kind contribution, not a coordinated expenditure.
9. One needs only to look to the court's decision in Federal Election Commission v. Furgatch, 807 F.2d 857 (9th Cir. 1987) to see the quicksand in this type of approach.
10. Judge Green also misconstrued the Christian Coalition's complaint about the extent of discovery in that case. See Christian Coalition, 52 F. Supp.2d at 88 n.52. Without a bright-line definition of what kind of communication could be coordinated, any communication which mentioned a clearly (and in some cases, not so clearly) identified candidate, was required to be produced. Not disputing the fact that some "fact-intensive" inquiry is inevitable when determining whether there was coordination, the Christian Coalition asserted that it would not have been subject to such a "fact-intensive" inquiry if a bright-line definition of communication had been applied in the first instance.
11. "Expenditure" is a term of art under the FECA and does not include "any payment made or obligation incurred by a corporation or a labor organization which, under section 441b(b) of this title, would not constitute an expenditure by such corporation or labor organization." § 431(9)(b)(v). Since FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986) interpreted § 441b(b) not to encompass issue advocacy, issue advocacy would also not be subject to the contribution limits of § 441a, even if coordinated.
12. Since this coordination language was only for purpose of § 441a, however, it does not apply to § 441b.
13. 2 U.S.C. § 441a imposes monetary limits on contributions to candidates, political committees and political parties.
14. The situation created by this addition is not really hypothetical; indeed, it is faced by countless individuals every day.
15. The adjective "wealthy" does nothing to enhance the hypothetical, but implies that the speech of the wealthy is somehow different from the speech of the non-wealthy and thus deserving of less protection.
16. "Agree" can "sometimes impl[y] no more than approval (as of a decision reached by others)." Webster's New Collegiate Dictionary at 24 (1975). "Agreement" can be defined as "harmony of opinion, action or character." Id.
17. This option for defining coordination requires some affirmative action, a request or suggestion, by the candidate or his agent.