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,
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'
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was cast aside by the court in an (unfortunately) unpublished decision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.
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
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
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,
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.