James Bopp, Jr. and Heidi K. Meyer(1)
After an intensive investigation, extensive discovery, and lengthy
briefing, on August 2nd, Judge Joyce Hens Green of the D.C. federal
district court, handed down her long-awaited decision on cross-motions
for summary judgment, exonerating the Christian Coalition ("Coalition")
on charges made by the Federal Election Commission ("FEC")
that the Coalition violated provisions of the Federal Election Campaign
Act ("FECA"). See Federal Election Commission v. The Christian
Coalition, No. 96-1781 (D.D.C. Aug. 2, 1999).
The case began on July 30, 1996, when the FEC filed suit claiming
that the Coalition violated the FECA by making unreported "independent
expenditures" in favor of three candidates for federal office
and by making unlawful corporate "in-kind contributions"
by coordinating the distribution of its voter guides with six other
federal candidates. The FEC sought substantial civil penalties for
these alleged violations.
What attracted so much attention to this case, apart from the media's
scrutiny of the Christian Coalition's activities, were the two novel
legal issues presented by this fact-intensive case. The first question
presented was whether, in determining if the Coalition made any
"independent expenditures," the communication must contain
"express advocacy" (which must be limited to "explicit
words of advocacy" of election or defeat of a candidate, by
use of phrases such as "vote for Smith") as argued by
the Coalition, or whether a more subjective inquiry into the "clearly
intended effect" of a communication should be made, as argued
by the FEC. This issue is one of first impression in the District
of Columbia Circuit, where many political and issue advocacy organizations
are located,(2) and where guidance from the bench has been long
The second question presented to Judge Green regarded the contours
of the definition of an in-kind contribution. According to the FEC,
funds spent by the Coalition to produce voter guides, although not
containing "express advocacy," were deemed coordinated
with the campaign staff of certain candidates due to extensive consultations
with them. Thus, the FEC claimed that otherwise permissible campaign-related
materials were turned into illegal in-kind corporate campaign contributions.
BRIGHT LINE "EXPRESS ADVOCACY" TEST ADOPTED
The FEC alleged that the Coalition violated § 441b of the
FECA by using general treasury funds to finance "independent
expenditures" on three separate occasions. Assuming without
deciding that two of the elements for an "independent expenditure"
were met (that the communication was independent and that it mentioned
a clearly identified candidate), the Court turned to the third element
of the test, that is, whether the three expenditures contained "express
In arguing that these three communications contained "express
advocacy," the FEC pressed for a standard that would measure
the speaker's subjective intent, the recipient's understanding,
and the context outside the communication itself. The Coalition
advocated a bright-line rule of law, which requires "explicit
words of advocacy" of election or defeat of a candidate for
a communication to contain "express advocacy."(4)
The Court rejected the FEC's posited approach and instead adopted,
consistent with other courts, a narrow "express advocacy"
test that focuses solely on the meaning of the words. See Opinion
at 30-31 ("First, the communication must in effect contain
an explicit directive. . . . That effect is determined first and
foremost by the words used. . . . More specifically, the `express
advocacy' standard requires focus on the verbs. . . . Second, that
verb or its immediate equivalent considered in the context
of the entire communication, including its temporal proximity to
the election must unmistakably exhort the reader/viewer/listener
to take electoral action to support the election or defeat of a
clearly identified candidate."). While noting that this narrowing
construction may render the FECA's regulations on independent expenditures
of limited application, the Court concluded that nevertheless, the
Supreme Court's decisions in Buckley v. Valeo, 424 U.S. 1 (1976)
and FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986)
mandates this conclusion.
APPLICATION OF THE BRIGHT-LINE
"EXPRESS ADVOCACY" TEST
In applying the bright-line test, Judge Green concluded that a
speech in Montana made by Dr. Ralph Reed, then Executive Director
of the Coalition, ten months before the 1992 general election, did
not contain express advocacy of the defeat of Democratic incumbent
Congressman Pat Williams. Judge Green found that a very large portion
of the speech focused on issues not directly related to the election
"by any measure." Opinion at 33. However, while also noting
that the speech contained some explicit references to Congressman
Williams, Judge Green found that Dr. Reed "carefully avoided
such advocacy" even though some of his "verb choices,
if phrased a bit differently, may well have crossed into express
advocacy." Opinion at 34 ("Here was a typical national
pro-family strategy when it came to knocking off somebody like Pat
Williams."(emphasis in original)).
The most pointed reference to Congressman Williams was the following
statement by Dr. Reed: "[Victory] will be ours here in Montana.
And it will be ours all across America. . . . We're going to see
Pat Williams sent bags packing back to Montana in November of this
year. And I'm going to be here to help you." However, Judge
Green, in rejecting the FEC's construction of this quote as an explicit
directive to defeat Congressman Williams, found that "[a]lthough
the implicit message is unmistakable, in explicit terms this is
prophecy rather than advocacy," Opinion at 34, and the message
"requires one inferential step too many to be unequivocally
considered an explicit directive." Opinion at 35.
The Court also rejected the FEC's second "express advocacy"
claim. The factual basis for this claim involved a 1994 mailing
titled "Reclaim America" which included a letter from
Dr. Pat Robertson and a Coalition scorecard which contained the
voting records of incumbent members of Congress. The letter states
that "If Christian voters . . . are going to make our voices
heard in the elections this November . . . we must stand together,
we must get organized, and we must start now." Opinion at 35.
The FEC argued that, although the letter referred to no clearly
identified candidates, when read in connection with the scorecard,
the only understanding is a direction to the reader to support the
election of those candidates rated favorably in the scorecard.
The Court disagreed with the FEC's interpretation and found that,
"in the context of the entire mailing, which focuses on the
importance of raising the profile of issues important to `Christian
voters,' a reasonable person could understand Robertson's statement
to be a directive to engage in issue advocacy with all candidates
in the upcoming election." Opinion at 36. Similar statements
in the letter were also found to be understood to be exhorting the
reader to lobby incumbents on certain issues. Opinion at 38. In
addition, Judge Green found the scorecard resembled that at issue
in CLITRIM (which also contained no express advocacy), but was unlike
the publication at issue in MCFL (which did contain express advocacy
because it identified which candidates were pro-life and then urged
the reader to "vote pro-life"). Therefore, while the Court
found that "a preference for the Republican incumbents is clearly
implied, a reasonable reader would not know whether the Coalition
sought the election or defeat of an incumbent who agreed with the
Coalition 59 percent of the time on the issues selected without
knowing how the opponent rated." Opinion at 36-37.
On its final "express advocacy" claim, the Court found
for the FEC. Specifically, the Court held that a mailing by the
Georgia Christian Coalition before the 1994 Georgia primary advocated
the election of Congressman Newt Gingrich because it "was expressly
directed at the reader-as-voter," when the letter stated that
"The Primary Elections are here!" and then provided two
items "[t]o help you prepare for your trip to the voting booth."
Opinion at 38. The clincher in the Court's eyes was the following
statement in the letter: "The only incumbent Congressman who
has a Primary election is Congressman Newt Gingrich a Christian
Coalition 100 percenter. Make sure that you save this scorecard
for November, however, because all other Congressman are opposed
in the General Election."
Opinion at 39 (emphasis in Opinion). Therefore, the Court continued,
"[t]he unmistakable meaning of the letter is that because Newt
Gingrich has voted as the Coalition would have wanted him to on
every vote the Coalition considered significant, the reader should
vote for him in the primary election." Opinion at 39.
IN-KIND CONTRIBUTION ALLEGATIONS
The second issue was whether the Coalition made illegal corporate
"in-kind contributions" to certain federal candidates
by allegedly "coordinating" the distribution of the Coalition's
voter guides with these candidates. Specifically, the FEC claimed
coordinated expenditures occurred with the NRSC in 1990, the 1990
Helms for Senate campaign, the Bush-Quayle `92 campaign, the 1992
Inglis for Congress campaign, the 1994 Hayworth for Congress campaign,
and the 1994 North for Senate campaign.
Finding that Buckley left unresolved First Amendment concerns that
arise with respect to "expressive coordinated expenditures"
(as opposed to direct monetary contributions), the Court decided
that the Coalition's case provided the precise case in which to
grapple with the issue. In resolving the issue, the Court fashioned
a narrow definition of coordination that requires negotiation or
give-and-take between the parties. "Substantial discussion
or negotiation" over a communication's contents, timing, location,
mode, or intended audience, or volume is required. Opinion at 101.
"Substantial discussion or negotiation is such that the candidate
and spender emerge as partners or joint venturers in the expressive
expenditure," although they "need not be equal partners."
Opinion at 101. "This standard limits § 441b's contribution
prohibition on expressive coordinated expenditures to those in which
the candidate has taken a sufficient interest to demonstrate that
the expenditure is perceived as valuable for meeting the campaign's
needs or wants." Opinion at 101. Mere knowledge of campaign
strategy or an organization's plans to distribute a specified amount
of voter guides is not enough, but "considerable coordination
will convert an expressive expenditure into a contribution."
Opinion at 99.
In determining how much coordination is required by the First Amendment
to be proven, the Court rejected standards posited by both the FEC
and the Coalition. Specifically, the Court rejected a "but-for"
test as too narrow, which would have examined whether the corporation
or union would have made the expenditure but for the intercession
of the candidate or his staff. Opinion at 94. The Court also refused
to adopt the FEC's overbroad "insider trading" or conspiracy
standard which would cause any consultation, including issue discussion,
between a potential spender and a federal candidate's campaign about
plans, projects, or needs, to render any subsequent expenditures
made for the purpose of influencing the election coordinated expenditures.
Opinion at 94.
Although adopting a narrow view of coordination, the Court nonetheless
refused to limit coordinated expenditures to only those communications
that contain express advocacy. Finding the argument made by the
Coalition and amici unpersuasive, the Court found that neither the
FECA nor the First Amendment requires a limiting construction on
§ 441b's prohibition on corporate contributions or expenditures
in connection with federal election so that it only applied to communications
that contain "express advocacy." See Opinion at 89-94.
In dismissing the argument, the Court reasoned that if an individual
can be criminally convicted for making an illegal in-kind contribution
by expending a sum in excess of the contribution limit without the
expenditure expressly advocating the election or defeat of a clearly
identified candidate, then a corporation should also be civilly
liable for making an illegal in-kind contribution even though the
communication does not contain "express advocacy." See
Opinion at 91 (citing United States v. Goland, 959 F.2d 1449, 1452
(9th Cir. 1992)). Providing another basis for rejecting the Coalition's
argument, the Court found that importing the "express advocacy"
standard into § 441b's contribution prohibition "would
misread Buckley and collapse the distinction between contributions
and independent expenditures in such a way as to give short shrift
to the government's compelling interest in preventing real and perceived
corruption. . . . Were this standard adopted, it would open the
door to unrestricted corporate or union underwriting of numerous
campaign-related communications that do not expressly advocate a
candidate's election or defeat." Opinion at 92.
Perhaps the most disappointing aspect of the Court's refusal to
adopt the bright-line standard express advocacy rule for in-kind
contributions is that issue advocacy organizations and labor unions
remain chilled in their exercise of First Amendment rights. Intrusive
investigations are still possible because of the "necessarily
fact-intensive inquiry allowing for extensive FEC inquiry into the
nature and extent of communications between the alleged contributor
and campaign" that is required in the absence of a bright-line
rule. Opinion at 93.
APPLICATION OF THE NARROW COORDINATION
In applying this legal analysis, the Court found that the Coalition
did not make any in-kind contributions in five of the races alleged
and found that a trial is necessary to resolve the last one. The
most significant claim, coordination with Bush-Quayle '92, involved
extensive discovery (including a search of unarchived presidential
and campaign documents in boxes at the National Archives) and depositions
of numerous people associated with both the Coalition and Bush-Quayle
`92, including depositions of both former President Bush and former
Vice President Quayle. The FEC conducted a wide-ranging investigation
of the relationships among Coalition officers and employees and
those on the national and state Bush-Quayle campaign staffs, going
back so far as the beginning of President Bush's and Dr. Robertson's
friendship when their fathers were Senators. The FEC offered as
evidence in support of their position every contact, meeting, and
appearance that took place from 1990 through 1992 between Coalition
officers and President Bush, Vice President Quayle, White House
officials, and Bush-Quayle campaign staff. Not left out were the
hundreds of phone calls from the Coalition to the White House and
Bush-Quayle `92 campaign headquarters.
Despite these frequent contacts between the Coalition and its individual
officers and the White House and campaign, the Court found a lack
of coordination. Of particular importance was the fact that Bush-Quayle
campaign staff did not initiate a discussion or negotiation in response
to the Coalition's sharing of information regarding its plans to
publish 40 million voter guide in 1992. See Opinion at 107.
Another important aspect of the Court's opinion regarding Bush-Quayle
is its finding that coordination cannot be inferred "merely
from a corporation's possession of insider knowledge from a federal
candidate's campaign. Some more overt acts of coordination are required."
Opinion at 108. The Court found that overt acts did not occur.
The FEC's main argument regarding its Helms for Senate claim was
that Dr. Reed was privy to Senator Helms' private opinion polls
and used this knowledge to target voter guides in North Carolina.
Finding the FEC's evidence weakest on this claim, the Court found
"no evidence or allegation that the Helms campaign requested
or suggested that the Coalition distribute voter guides or make
[Get Out The Vote] calls nor did the campaign discuss the content,
timing, location or volume of the voter guides with the Coalition."
Opinion at 109.
The Court also found the FEC's evidence in support of its Inglis
claim to be built upon its insider trading or conspiracy theory.
A Coalition official's knowledge about the Inglis campaign gained
in his volunteer capacity did not demonstrate a link between that
knowledge and any discussion or negotiation of the expenditures
on voter guides. Thus, the FEC did not show "that the Inglis
campaign became a partner in the Coalition's voter guide expenditures."
Opinion at 110.
Regarding its Hayworth claim, the FEC again used its insider trading
or conspiracy theory, arguing that because a Coalition state official
was both a Coalition officer and a campaign insider, it must be
inferred that he coordinated the voter guide distribution with himself.
The Court found that engaging in veil-piercing of this sort would
burden associational rights in this case where the Coalition officer
lacked a more complete decisionmaking authority for both the Coalition
and the campaign and the evidence did not indicate that decisions
to make expressive expenditures were taken to assist the campaign.
Opinion at 112-13.
As for its NRSC claim, the FEC argued that a $64,000 donation by
the NRSC to the Coalition, which was spent on voter guides, resulted
in an illegal contribution. Judge Green rejected this claim, finding
that because the NRSC could legally independently spend unlimited
amounts in support of its candidates, a "service" from
the Coalition (converting its funds into voter guides) to the NRSC
would have to be found. Opinion at 113. However, the facts did not
demonstrate that the Coalition provided the NRSC with a service
in the form of an anonymity premium. Opinion at 114.
The Court found, however, that the evidence of coordination with
the Oliver North campaign was in dispute, requiring a trial to resolve.
Opinion at 110. With one possible exception, like the other campaigns
discussed above, the FEC could not show that discussions between
campaign officials and Coalition officers touched on the Coalition's
voter guide plans. There was conflicting testimony, however, regarding
whether discussions occurred about what issues should appear on
the voter guide. Also left for trial is the fair market value of
a list of delegates to the Republican state convention in Virginia,
given by the Coalition to a North campaign consultant, which the
judge found to result in an unlawful in-kind contribution to the
Overall, the Court's decision was a major victory for the Christian
Coalition, which had been pursued relentlessly by the FEC since
1992. However, the spoils from the victory are not the Coalition's
alone. All corporations and labor unions can rest a little more
securely within the District of Columbia, knowing that a bright-line
express advocacy test governs their communications, and that a narrow
definition of coordination applies to determine whether coordinated
expenditures become illegal in-kind contributions. However, corporations
and labor unions must still sleep with one eye open until the court
eliminates the chill still present from its refusal to adopt the
express advocacy test for in-kind contributions.
- Mr. Bopp and Ms. Meyer, of the Terre Haute,
Indiana, law firm of Bopp, Coleson & Bostrom, were lead counsel
for The Christian Coalition. Mr. Bopp is also Of Counsel to the
Washington, D.C. law firm of Webster, Chamberlain & Bean and
serves as the Chairman of the Election Law Subcommittee of the
Free Speech and Election Law Practice Group of the Federalist
- The filing of an amici
curiae brief in support of the Coalition's position by the AFL-CIO
and the ACLU demonstrates the wide implication and importance
of this case.
- This issue, while one
of first impression in the D.C. Circuit, has been addressed by
other Circuits, which have adopted the "explicit words of
advocacy" test for "express advocacy." See Iowa
Right to Life Comm., Inc. v. Williams, 1999 WL 607886 (8th Cir.
1999); North Carolina Right to Life, Inc. v. Bartlett, 168 F.3d
705 (4th Cir. 1999); Virginia Soc'y for Human Life, Inc. v. Caldwell,
152 F.3d 268 (4th Cir. 1998); Brownsburg Area Patrons Affecting
Change v. Baldwin, 137 F.3d 503 (7th Cir. 1998): FEC v. Christian
Action Network, Inc., 110 F.3d 1049 (4th Cir. 1997)(CAN II); FEC
v. Christian Action Network, Inc., 894 F. Supp. 946 (W.D. Va.
1995), aff'd per curiam, 98 F.3d 1178 (4th Cir. 1996)(CAN I);
Maine Right to Life Comm., Inc. v. FEC, 914 F. Supp. 8 (D. Me.
1996), aff'd per curiam, 98 F.3d 1 (1st Cir. 1996)("[W]e
affirm for substantially the reasons set forth in the district
court opinion."); Faucher v. FEC, 928 F.2d 468 (1st Cir.
1991); FEC v. Central Long Island Tax Reform Immediately Comm.,
616 F.2d 45 (2d Cir. 1980)(en banc); Kansans for Life, Inc. v.
Gaede, 38 F. Supp.2d 928 (D. Kan. 1999); Florida Right to Life,
Inc. v. Mortham, No. 98-770-CIV-ORL-19A (M.D. Fla. Sept. 29, 1998)(Order
clarified Oct. 16, 1998); Right to Life of Mich., Inc. v. Miller,
23 F. Supp.2d 766 (W.D.Mich. 1998); Planned Parenthood Affiliates
of Mich., Inc. v. Miller, 21 F. Supp.2d 740 (E.D. Mich. 1998);
Right to Life of Dutchess County, Inc. v. FEC, 6 F. Supp.2d 248
(S.D.N.Y. 1998); Clifton v. FEC, 927 F. Supp. 493 (D. Me. 1996),
aff'd on other grounds, 114 F.3d 1309 (1st Cir. 1997); FEC v.
Christian Action Network, 894 F. Supp. 946 (W.D. Va. 1995), aff'd
per curiam, 92 F.3d 1178 (4th Cir. 1996); FEC v. Survival Educ.
Fund, Inc., 1994 WL 9658 (S.D.N.Y. Jan. 12, 1994), aff'd in part
and rev'd in part on other grounds, 65 F.3d 285 (2d Cir. 1995);
FEC v. Colorado Republican Fed. Campaign Comm., 839 F. Supp. 1448
(D. Colo. 1993), rev'd, 59 F.3d 1015 (10th Cir. 1995), vacated
and remanded on other grounds, 116 S. Ct. 2309 (1996); West Virginians
for Life, Inc. v. Smith, 919 F. Supp. 954 (S.D.W.Va. 1996); FEC
v. NOW, 713 F. Supp. 428 (1989); FEC v. AFSCME, 471 F. Supp. 315,
317 (D.D.C. 1979); but cf. FEC v. Furgatch, 807 F.2d 857 (9th
- "Reformers" derisively call this
a "magic words" test, as if the Coalition was arguing
that only the specific words, such as those listed in Buckley's
footnote 52 qualify. In so doing, the "reformers" set
up a strawman, which was easily knocked down by the Judge's rejection
of a "magic words" test. However, the Coalition was
not advocating a "magic words" test but rather an "explicit
words of advocacy" test, which focuses on the meaning of
the words used, instead of the subjective intent of the speaker
or effect on the listener as advocated by the "reformers."