James Bopp, Jr.*
The Federal Election Commission's well-publicized lawsuit against
the Christian Coalition brings to light the 20-year war it has waged
on the First Amendment. This case is merely another in a long list
of failed attempts by the FEC to suppress issue-oriented speech
by citizens groups -- and along the way to circumvent the First
This sorry tale began twenty-two years ago with Congress's adoption
of the post-Watergate Federal Election Campaign Act. The motivating
theory behind the FECA was that unregulated political speech is
dangerous to democracy. In pursuit of this goal, one provision of
the FECA prohibits corporations and labor unions from making any
"expenditure" or "contribution" in connection
with a federal election.
Since the adoption of the FECA, the FEC, which has broad powers
to enforce the Act, has taken the position that any speech that
might influence an election is political speech which can be prohibited.
This is where the Christian Coalition and many other lobbying groups
come in. Most lobbying groups, ranging from NOW to the United States
Chamber of Commerce, are incorporated and engage in vigorous issue
advocacy. This includes the publication of "scorecards,"
which rate the legislative performance of incumbent Congressmen,
and "voter guides," which inform the general public of
Because these groups are incorporated, they are subject to the
prohibition on corporate political speech. The FEC, however, has
long viewed these "scorecards" and "voter guides"
as prohibited speech because they may influence an election. As
a result, the FEC has relentlessly sought to prohibit such issue-oriented
These efforts, however, have run up against the First Amendment,
since the federal courts have properly recognized that political
speech is "at the core of our electoral process and of First
Amendment freedoms." For example, the Supreme Court held in
FEC v. Massachusetts Citizens for Life (1986) that, for speech to
be subject to the FECA's corporate prohibition, it must pass a "bright-line"
test -- that the communication must contain explicit words expressly
advocating the election or defeat of a clearly identified federal
candidate. This bright line test was required by the First Amendment
in order to provide ample breathing room for issue-oriented speech.
The FEC, however, has not been deterred in its obsession to suppress
issue-oriented speech and has treated the First Amendment as little
more than an inconvenient obstacle it must avoid. As a result, the
FEC has sought to blur the "bright line" by claiming that
explicit words of advocacy are not necessary, thereby subjecting
issue-oriented speech, including "voter guides" and "scorecards"
to the FECA's prohibition.
Blurring this distinction between express advocacy and unregulated
speech would have serious consequences for free speech and our representative
democracy. If a speaker is unsure whether speech criticizing the
position of a politician on an issue "influences an election,"
a chill descends on the public discussion of issues. This chill
is exacerbated by the threat of selective enforcement by the FEC
which may determine after the fact that one speaker influenced an
election while another did not.
Fortunately, this FEC assault on the First Amendment has been consistently
rebuffed by the courts in almost a dozen cases over 20 years, beginning
with Buckley v. Valeo (1976) and continuing right up to the present.
See, e.g., Maine Right to Life Committee v. FEC (D.Me. 1996).
But in suing the Christian Coalition for distribution of their
non-partisan voter guides--which only set forth the positions of
candidates on the issues, without endorsing any candidate--the FEC
has simply shifted the ground for its attack on the First Amendment.
Having lost the battle against the express advocacy test, the FEC
now alleges that it can prohibit voter guides as unlawful corporate
"contributions" if they are "coordinated" with
Here again, the FEC stretches the law. The FEC does not allege
that the specific voter guides, such as the 1992 voter guide on
the Bush/Clinton/Perot presidential election, were prepared and
distributed at the urging of President Bush. They argue instead
that the relationship between Pat Robertson or Ralph Reed and the
Bush campaign was such that the Christian Coalition voter guide
must be "presumed" to have been coordinated with these
Unfortunately for the FEC, the Supreme Court recently rejected
this FEC theory. In Colorado Republican Federal Campaign Committee
v. FEC, the FEC argued that the intimate relationship between a
political party and its candidates resulted in automatic coordination
of all expenditures of the political party which might influence
that election. In an opinion by Justice Breyer, the Supreme Court
held that, for an expenditure to be coordinated, the FEC must prove
that the specific expenditure in question was in fact coordinated;
otherwise, the First Amendment requires that it be presumed to be
an independent expenditure. Since the Christian Coalition's voter
guides are not specifically coordinated with any candidate, they
too are independent and not a contribution to any candidate's campaign.
So where does this leave the constitutional protection of issue
advocacy? According to the First Amendment, issue advocacy is fully
protected and, in fact, numerous organizations are currently engaged
in it--most notably the AFL-CIO in its $35 million dollar issue-oriented
campaign to unseat freshman Republican Congressmen by criticizing
them for their votes in Congress.
However, the FEC's unsuccessful efforts to limit issue advocacy
has come at great cost to the First Amendment. Even though the FEC
has lost every case it has brought in its effort to suppress issue-oriented
speech by citizens groups, the chill on free speech has silenced
many citizens who have forgone their participation in our political
process rather than risk a suit by the FEC. It is time that Congress
step in and reign in this lawless government agency that is seeking
to cut out the core of our First Amendment freedoms.
*James Bopp, Jr. is member of the Terre Haute, Indiana law firm
of Bopp, Coleson & Bostrom and serves as Vice-Chairman of the
Federalist Society's Free Speech and Election Law Practice Group.
He represents the Christian Coalition in the suit brought by the