Allison R Hayward

This column marks the inauguration of a regular feature of the Free Speech & Election Law Newsletter discussing recent news and developments in election law, government ethics, and related topics. I welcome your suggestions on topics to cover, differences of opinion, and any other offerings Practice Group members would like to serve up. I can be reached by phone at 202/828-4906, fax at 202/429-7049, via email at AHayward@wrf.com, or through snail mail at Wiley, Rein and Fielding, 1776 K Street NW, Washington, DC 20006.

As I am sure you realize, nothing I say here necessarily reflects the views of Wiley, Rein & Fielding or any of its clients.

1. Christian Action Network attorneys' fee decision

The Fourth Circuit slammed FEC lawyers in a recent decision regarding an application for attorneys' fees by a party that successfully defended against an FEC enforcement action. FEC v. Christian Action Network, 110 F.3d 1049 (4th Cir. 1997). In the underlying suit, the FEC prosecuted the Christian Action Network (CAN) for failing to comply with federal election law requirements, asserting that their advertisement identifying Clinton's "pro-homosexual agenda" was an "expenditure" containing the equivalent of "express advocacy" of the defeat of Candidate Clinton. The FEC's theory was cast aside by the court in an (unfortunately) unpublished decision last year. (However, the district court's opinion dismissing the action, which the Fourth Circuit summarily affirmed, is published. See FEC v. Christian Action Network, 894 F. Supp. 946 (W.D. Va. 1995)).

Judge Luttig, writing for the panel in this fee decision, showed little tolerance for the FEC's attempts to chip away at the First Amendment protection of issue advocacy:

Because the position taken by the FEC in this litigation was foreclosed by clear, well-established Supreme Court caselaw, and it is apparent from the Commission's selective quotation from and citation to those authorities that the agency was so aware, we conclude that the Commission's position, if not assumed in bad faith, was at least not "substantially justified."

Ouch. The FEC's efforts to make an "express advocacy" case out of "negative imagery" that lacked any direct call to vote for or against a candidate was plainly ill-advised. One wonders why they made the attempt.

2. Fritz in '56

Some readers might have noticed that Senators Nancy Landon Kassebaum Baker and Walter Mondale weighed in on soft money and other campaign finance issues in June, with an open letter to the President and Congress advising a "course of urgent debate leading to early and meaningful action." Now a strong advocate of further restrictions on campaign spending, Mondale has moved far from his first views on the issue, which can be found in an unsigned student law review note entitled Minnesota Corrupt Practices Act: A Critique of the Fixed Campaign Expenditure Limitations, 40 Minn. L. Rev. 156 (1956). (Scott Johnson of Faegre & Benson in Minneapolis deserves credit for bringing this article to my attention. His discovery is described in greater detail in a June 10 op-ed in The Washington Times co-authored with John Hinderaker.)

Mondale's prescient observations about the masking effect of expenditure limits are worth review:

Extremely low expenditure limits provided in state and federal statutes present candidates and political parties with alternatives of either conducting a feeble campaign or evading the law. Therefore, to avoid these limits, candidates and party organizations conspire to organize independent committees which are not limited in the amount they may spend. . . . The establishment of these independent committees results in dispersion of campaign financing which adversely affects public disclosure regulations . . . .

Which Fritz got it right, the young student grasping simple truths, or the now-retired career politician?

3. Campaign contribution reports on the Internet

More jurisdictions are making campaign contribution searches available through the World Wide Web. At the federal level, researchers frustrated with the difficulty of using the FEC's direct access program (or the inconvenience of visiting the public records office for data), should try FECInfo, found at www.tray.com/FECInfo. FECInfo searching can be done for the 93-94, 95-96, and 97-98 election cycles.

Occasionally, I have found that search results using FECInfo differ slightly from the results obtained using the FEC's direct access program. I recommend that results be checked against an official record before using FECInfo-generated data in work product, pleadings, or publications. But with this small caveat, FECInfo has done a wonderful job making campaign contribution research both easy and fun. I'm a big fan.

The Virginians in the audience might like to check out the Virginia Public Access Project's searchable database of Virginia state contributions. It can be accessed through the Center for Responsive Politics Webpage, at www.crp.org/vpap.

4. FEC Appointments

Kudos to Practice Group Member Darryl Wold, who was recently nominated to the Federal Election Commission. As a practitioner in this area for many years, Wold should bring sound judgment and experience to the Commission. Please join me in wishing him the best of luck in this position

5. Be Careful What You Say In Wisconsin

The general prohibition against prior restraints received a blow in Wisconsin this last election. Angry incumbents obtained restraining orders against the broadcast of unflattering issue advertisements produced by Wisconsin Manufacturers & Commerce, Americans for Limited Terms, and the Sierra Club. The orders were affirmed by a state appellate court. Apparently, these Wisconsin judges concluded that private groups must register with campaign regulators before discussing the voting records of elected officials. The Wisconsin Attorney General filed suit in June against WMC and ALT. WMC, for its part, has filed suit in federal court against the state's enforcement activities. This is a case worth watching.

6. FEC rulemaking on coordination

The FEC has issued a Notice of Proposed Rulemaking to enact rules on whether (and to what extent) a group's expenditures may become in-kind contributions to a candidate (or political committee) if "coordinated" with that candidate or committee. 62 Fed. Reg. 24367 (May 5, 1997). While ostensibly a rulemaking prompted by the Supreme Court's decision in Colorado Republican Federal Camp. Comm. v. FEC, the proposed rules go beyond the issues addressed and standards articulated in Colorado. In addition, the FEC continues to use an "electioneering" standard for regulating party coordinated expenditures (rather than the express advocacy standard courts find constitutionally acceptable).

The rule offers definitions of phrases that must be read to be believed: In one alternative, the proposed rule defines "payments made in 'coordination' with a candidate" as:

Payments made by any person in cooperation, consultation, or concert with, at the request or suggestion or direction of, or pursuant to any general or particular understanding or arrangement with a candidate or a candidate's authorized committee or agent . . .(iii) "at the request, suggestion or direction of" means asking, ordering, requiring, indicating, telling, or otherwise expressly or impliedly expressing the hope or desire that one or more persons take action(s) . . . .

Let me take this opportunity expressly to express the hope and desire that one or more persons at the FEC take action to provide clear standards for the regulations of political speech, compatible with the First Amendment, which are clear enough to provide notice to the regulated community of what is permitted and what is not.

7. Clifton Confusion

The vexing "coordination" issue was also recently confronted by the First Circuit in Clifton v. FEC, ___ F.3d ___ (1997). Appellees (represented by Practice Group Executive Committee member Jim Bopp), challenged the FEC's voter guide regulations, which require that even voter guides not containing "express advocacy" would be treated as expenditures (prohibited to corporations and labor organizations) if "coordinated" with any candidate, group of candidates, or political party. The court provided some helpful guidance in this area - noting for example that "coordination" should amount to more than "a mere inquiry as to the position taken by a candidate on an issue," and stating that it was not within the FEC's administrative discretion to "rewrite the dictionary and classify a simply inquiry as a contribution."

While the court did strike down the broad construction of coordination offered by the FEC (as well as an equal-space requirement), it provided some troubling and cloudy analysis along the way. The opinion implied that the litigant's issues advocacy activities might be subject to regulation under Austin v. Michigan Chamber of Commerce, rather than protected under Massachusetts Citizens for Life and similar cases. The court then wrote: "It is unclear what the Supreme Court would say about the existence or extent of a constitutional right of campaign-related issue advocacy (using unsegregated funds) claimed by the Maine Committee." The court's apparent reluctance to implement Buckley's express advocacy standard here, its confusing references without definition to "campaign-related issue advocacy," and its portrayal of Austin as providing a lesser degree of protection for certain political speakers presents the election law bar with a confusing precedent. The opinion may also invite mischief from campaign regulators in other contexts.