Brennan Center, Common Cause, and Democracy 21 Analysis of Federal Election Commission v. The Christian Coalition
Opponents of campaign finance reform have been inaccurately hailing the August2, 1999 decision by Judge Joyce Green in Federal Election Commission v. The Christian Coalition.
In this decision, Judge Green dismissed a number but not all of the charges brought against The Christian Coalition by the Federal Election Commission (FEC), finding that the Coalition had not coordinated its public communications that is, voter guides with specific federal candidates, as charged by the FEC. As a result, the judge found the communications did not constitute illegal in-kind contributions to these candidates.
The attached memorandum a joint effort by Democracy 21, Common Cause, and the Brennan Center for Justice at NYU School of Law examines and reviews Judge Greens opinion, and addresses the inaccurate claims that have been made about the decision.
II. U.S. District Court Decision Inaccurately Described;
Raises New Questions For Congress To Consider
The recent federal district court decision by Judge Joyce Green in Federal Election Commission v. The Christian Coalition addressed a series of questions involved in the debate currently taking place over the nations campaign finance laws.
The decision has led to inaccurate statements and claims being made about the opinion, and its ramifications, by opponents of campaign finance reform.
The following are five key points about the decision:
- The judge found that if outside groups, like the Christian Coalition, coordinate their public communications about federal candidates with those candidates, the spending involved is covered by the campaign finance laws, regardless of whether the communications contain so-called “magic words,” such as “vote for” or “vote against.” This is the first time a federal court has ruled on this question, and the court decision adopts the position taken by campaign finance reform advocates.
- In the absence of a statutory definition of “coordination,” the judge crafted her own definition. But she defined coordination very narrowly and on that basis found there was no coordination between the Christian Coalition and various candidates. The judges overly narrow definition of coordination will encourage cheating, particularly because coordination charges are unlikely to be brought in the future by the FEC.
- The judge opened the door for Congress to fill the legislative void by enacting a statutory definition of coordination. Congress should act on this matter and provide a definition of what constitutes coordination that is more realistic than the one used by the judge. The definition should be sensitive to legitimate First Amendment values while also reflecting the political realities of what constitutes actual coordination between a candidate and an outside group.
- The judge indicated that Congress may be able to enact a carefully tailored definition of “express advocacy” that goes beyond the excessively narrow and easily circumvented “magic words” test developed by the Supreme Court in the absence of a statutory definition. The “magic words” test states that a public communication by an outside group will be treated as express advocacy for a candidate and subject to campaign finance laws only if it contains words such as “vote for” or “vote against” a particular candidate.
- The opinion provides no support for reform opponents who argue that candidate-related ads run by a political party are outside the campaign finance laws and therefore able to be funded with soft money as long as they dont contain “magic words.” The opinion addressed only public communications by corporations, such as the Christian Coalition, and said nothing about the rules governing communications by political parties, whose activities, according to the Supreme Court, “are by definition campaign related” and therefore subject to different treatment.
With this background in mind, it is worth carefully reviewing the opinion.
The court addressed two separate issues raised by the political activities of the Christian Coalition, a nonprofit corporation, during the 1990, 1992, and 1994 elections. The court considered, first, whether the Christian Coalition engaged in express advocacy on behalf of federal candidates and therefore violated federal law, which since 1907 has prohibited corporations from making contributions and expenditures in connection with a federal election.
Second, the court addressed whether the Christian Coalition coordinated some of its activities with candidates, thereby making the money spent on those activities illegal corporate contributions to their campaigns.
A. Express Advocacy
The first question addressed by the court was whether certain activities undertaken by the Christian Coalition independently of any candidate were prohibited corporate “expenditures” within the meaning of the Federal Election Campaign Act.
In Buckley v. Valeo in 1976, the Supreme Court held that spending on communications by outside groups, like the Christian Coalition, would be covered by the ban on corporate campaign expenditures only if the communication involved contained “express advocacy.” As examples of express advocacy, Buckley identified phrases such as “vote for” or “vote against” terms now known as “magic words.”
In the one later case where the Supreme Court has applied this test, FEC v. Massachusetts Citizens for Life, Inc. (MCFL), the Court examined the communication as a whole and concluded that it was express advocacy because “in effect” it provided an explicit directive to vote for or against a candidate. The Supreme Court has not revisited the express advocacy standard since this 1986 decision.
Since that time, however, there have been numerous lower court rulings on this question. In many of these cases, the courts have read Buckley and MCFL as limiting the meaning of express advocacy to just magic words. But in other cases, such as Furgatch v. FEC, courts have adopted a broader, more context sensitive approach to this question.
Judge Green declined to adopt the strict “magic words” approach. Although she recognized that the analysis must begin with a focus on words, and in particular on the active verbs used, she determined that express advocacy would include communications that “contain[ed], in effect, an explicit directive” the “functional equivalent” of magic words but only if the directive, “considered in the context of the entire communication, including its temporal proximity to the election – unmistakably exhort[ed] the reader/listener/viewer to take electoral action to support the election or defeat of a clearly identified candidate.”
This formulation of the test, like the legislative proposals to define “express advocacy” in the Shays-Meehan and McCain-Feingold bills, recognizes that the timing of an ad is relevant to the question of whether it should be regarded as express advocacy.
In applying her test, Judge Green found that one Christian Coalition expenditure was an illegal use of corporate money for express advocacy, even though it did not include “magic words.” That violation involved a mailing sent to voters before a primary election. The mailing was intended “to help you prepare for your trip to the voting booth” and it included a scorecard listing Newt Gingrich as “a Christian Coalition 100 percenter.”
Judge Green found that “[w]hile marginally less direct than sayingVote for Newt Gingrich, the letter in effect is explicit that the reader should take with him to the voting booth the knowledge that Speaker Gingrich was a Christian Coalition 100 percenter and therefore the reader should vote for him.” The Christian Coalition thus could not “merely chang[e] the verb vote into the noun, trip to the voting booth and thereby circumvent the express advocacy standard a type of “linguistic artifice” often used to avoid regulatory requirements.
In sum, both the formulation and application of Judge Greens express advocacy test left room for Congress to craft a statutory definition of “express advocacy” that extends beyond magic words.
Of course, only the Supreme Court can ultimately decide this important question, which it has not addressed for more that a decade and which becomes ever more pressing with the explosive growth of sham “issue advocacy” by corporate and union groups. It is important for Congress to add its voice to this debate by enacting a statutory definition of what constitutes express advocacy, until the Supreme Court steps into the fray to resolve this issue once and for all.
The second question addressed by the court in the Christian Coalition case was whether a corporate (or union) group is permitted to coordinate with a candidate on political communications, such as voter guides, that deal with the candidate but do not contain express advocacy. The court further addressed the question of what level of interaction between a group and a candidate qualifies as coordination.
Judge Green clearly held that a corporation cannot coordinate with a candidate about its expenditures for political communications dealing with the candidate even if the communications do not contain express advocacy. Such coordinated expenditures are the equivalent of contributions by the group to the candidate and therefore violate the ban on corporate contributions. Judge Green said:
[I]mporting the “express advocacy” standard into 441bs contribution prohibition would misread Buckley and – give short shrift to the governments compelling interest in preventing real and perceived corruption that can flow from large campaign contributions. 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 candidates election or defeat.
She added, “Allowing such coordinated expenditures would frustrate both the anti-corruption and disclosure goals of the Act.”
Having established the important legal proposition that public communications by a corporate group about a candidate, that are coordinated with the candidate, constitute an illegal corporate contribution, Judge Green then addressed the question of what constitutes “coordination.”
In the absence of any legislative definition from Congress, the judge determined that an expressive expenditure (about a candidate) becomes “coordinated” when made at the request or suggestion of a candidate; when the candidate or her agents can exercise control over the content, timing, location, mode, target audience, or volume of the speech; or when there has been “substantial discussion” or negotiation between the campaign and the group about these matters.
Judge Green reasoned that this standard limited the reach of the ban on corporate contributions “to those in which the candidate has taken a sufficient interest to demonstrate that the expenditure is perceived as valuable for meeting the campaigns needs or wants.”
Based on this restrictive standard, Judge Green found that the Christian Coalition had not coordinated its voting guides or other activities with the candidate campaigns in question. Judge Green made this ruling even though the record showed, for example, “extensive discussions” between Christian Coalition leaders and the 1992 Bush campaign about strategic campaign issues.
The courts conclusions demonstrate how difficult it will be, as a practical matter, to administer the standard it devised. What counts as “substantial discussion” will vary with every observer. Whereas Judge Green would allow virtually unfettered communications between candidates and outside groups as long as one side simply provides information to the other without eliciting a verbal response, other courts might not be so quick to exonerate campaigns and outside groups that exchanged mutually beneficial strategic plans with a wink and a nudge.
It is not surprising, of course, that a federal court insulated from the day-to-day realities of politics should come up with an unrealistic approach to the definition of “coordination.”
For this reason, Congress should use its awareness of these political realities to devise effective statutory rules about coordination, while respecting the First Amendment concerns that exist here. Ultimately, of course, it would be for the Supreme Court to resolve any constitutional questions that are raised by a statutory definition of coordination adopted by Congress.
In summary, the decision in this case:
- Finds for the first time that expenditures on public communications by an outside group that are coordinated with a federal candidate constitute illegal contributions by the group to the candidate, regardless of whether the communications contain express advocacy;
- Defines “coordination” in a narrow and unrealistic way that opens the door to cheating by candidates and groups in the future;
- Provides incentive for Congress to fill the legislative vacuum by providing a statutory definition of “coordination” that is more realistic; and
- Does not support the claims that Congress cannot ban political party soft money, or cannot regulate ads by parties about federal candidates that do not contain express advocacy.
Memorandum Prepared By:
Executive Vice President
E. Joshua Rosenkranz, Executive Director
Deborah Goldberg, Senior Attorney
Brennan Center for Justice at NYU School of Law