Remarkably, Brad and I are in agreement on one point: there is, and
always has been, a "content" standard for "coordinated expenditures" --
i.e., the communication at issue has to be an "expenditure." Nothing in
my post says otherwise -- I didn't say, as Brad seems to think, that
"for the first time" in 2002, "the Commission imposed a content test."
I said that for the first time, the Commission imposed a "narrow
content" test, referring (perhaps too elliptically) to the infamous
120-day period. That, I trust, sufficiently explains why the Democracy
21 press release in Brad's hypo is not a problem, and why my post did
not indicate otherwise.
Where Brad and I remain in disagreement is on the question of how best
to define "expenditure" for these purposes. The Commission itself (and
not simply Larry Noble and the "regulatory groups") for many years
applied the statutory "expenditure" standard. Indeed, in the Christian
Coalition case, the Commission prevailed in the argument that express
advocacy should NOT be used as the "content" standard for coordination.
The court aggressively agreed with the Commission's position, calling
arguments that sought to engraft an express advocacy test onto the
regulation of coordinated communications to be "untenable," "fanciful,"
"unpersuasive," "pernicious," and a threaten to "frustrate both the
anti-corruption and disclosure goals of the Act." But after winning
that point, the Commission, in part under Brad's influence, nonetheless
ultimately retreated, as a practical matter, to applying an express
advocacy test.
The question thus remains how best to define the "expenditure" content
standard for purposes of the coordination rules -- time frame? time
frame plus something else (and if so, what)? or some different kind of
test? For reasons that we explained in our rulemaking comments, and
that are suggested in the court complaint, the data relied on by the
Commission for the current 90- and 120-day rules do not support the
conclusion that no test other than express advocacy is necessary outside
those time frames, and the D.C. Circuit has already rejected reliance
for these purposes on the Buying Time study cited by Brad. But these
are the questions that lie at the heart of the lawsuit filed yesterday,
and will hopefully be resolved by the court.
Don Simon
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of Smith,
Brad
Sent: Wednesday, July 12, 2006 12:04 PM
To: Rick Hasen; election-law
Subject: RE: Electionlawblog news and commentary 7/12/06
Don's comment repeats an inaccurate description of the FEC's history of
enforcement of coordination, and one that is very relevant to the latest
lawsuit by the pro-regulatory groups. Don writes that in 2002, "For the
first time, the Commission imposed a narrow "content" test,..." on
coordinated communications."
This is not true. As a practical matter, there is, and has always been,
a content test on coordinated communications, in the law itself, if
nowhere else. Otherwise, yesterday Democracy 21 quite probably violated
the law with it's press release announcing the lawsuit. That is,
Democracy 21 almost certainly coordinated its press release with
Congressmen Shays and Meehan, and the release mentions the two
congressmen favorably, in discussion of the issue on which the two men
are most intimately identified. As I believe that Democracy 21 is
incorporated (please correct me if I'm wrong), they are prohibited from
spending any money on the Shays or Meehan campaigns, so even the modest
amount spent would be illegal if coordinated (they might qualify for an
MCFL exemption, but Democracy 21 having lobbied and sued to make that
exemption harder to get, I'm not sure they qualify).
Does this seem absurd? Perhaps. But why would the Democracy 21 press
release not be an illegal coordinated contribution? The reason is that
it was in theory not, "for the purpose of influencing" a Federal
election, as required by the statute (although I do think we can safely
assume that Democracy 21 will be crushed if either Congressman were to
lose this fall). And that, my dear friends, is a "content" standard.
The question is: "Is it a constitutional content standard?"
In Buckley, the Court held that the statutory content standards of
"purpose of influencing" and "relative to" were unconstitutionally
vague, unless given a narrowing construction, which the Court supplied
as what became known as "express advocacy." A lengthy fight then ensued
as to whether that speech protective standard also applied to
coordinated contributions and expenditures, or only to uncoordinated
activity. The regulatory groups and long-time FEC General Counsel Larry
Noble insisted that it did not, that any disbursement of funds, if
coordinated, was a violation. Others, including this author, believed
that it did - that a "coordinated expenditure" had to be both
"coordinated," (a question of conduct), and a statutory "expenditure," a
question of content that had been dramatically narrowed by the Court in
Buckley. I think a fair-minded observer would admit that Buckley is not
entirely clear on the point, and predictably, those who favored free
speech interpreted i!
t one way, and those who favored more regulation interpreted it
another.
By the spring of 2002, the "express advocacy" standard had carried the
day at the FEC. See MUR 4538, Statement of Reasons of Chairman Mason
and Commissioner Smith, May 28, 2002, available here:
http://eqs.nictusa.com/eqs/searcheqs;jsessionid=CNRbLdkkUtdAtiBJ?SUBMIT=
continue. See also Comments of the Center for Competitive Politics to
the FEC, re Rulemaking on Coordinated Expenditures, Jan. 13, 2006,
available here: www.fec.gov/pdf/nprm/coord_commun/comm02.pdf.
McCain-Feingold advocates were acutely aware of this, which is why when
writing the law they expressly included a provision that required the
FEC, when writing the new coordination reg mandated by the law, not to
limit it to "express advocacy."
Thus, it is simply not true, as Democracy 21 urged in yesterday's press
release, that the coordination rule released in 2002 was more narrow
than the Commission's prior standard. That prior standard had been
silent on any "content" standard, but in fact, as I noted at the outset,
everyone agrees that there is, indeed must be, *some* content standard,
and in practice the one being applied by the FEC prior to 2002 was
"express advocacy."
Beyond that error, Don bases much of his rationale for the lawsuit on
an argument that I don't think really hold up. Don argues that "The
"coordination" rules should be designed to encompass all advertising
intended to impact elections. The fact that most campaign ads run close
to an election is no reason for the Commission to permit unlimited
coordination on campaign ads run more than 90 days before an election."
Maybe, but maybe not. Any content standard - remember, we all agree
that some content standard is necessary, and even Don is arguing for one
by implication - he wants it to be a "campaign ad," a term which
presumably has some meaning and therefore is a content limitation - can
at some level be evaded. By analogy, the electioneering communications
provisions of BCRA recognize that not all "campaign ads" can be
regulated, as a practical matter, as the regulators might like - it only
limits ads within 60 days of an election. If, as the Buying Time
studies and the 2004 election data show, almost no coordinated campaign
ads are run more than 90 days before the election (and if the regulation
still regulates any such ads that include express advocacy, as it does),
then there is every reason to think that the Commission has struck a
proper balance in an area that Congress expressly, in BCRA, left to the
Agency's discretion, with only the requirement that it not limit it's
defini!
tion solely to express advocacy, which it surely has not.
- Brad Smith
________________________________
From: owner-election-law_gl@majordomo.lls.edu on behalf of Rick Hasen
Sent: Wed 7/12/2006 10:17 AM
To: election-law
Subject: Electionlawblog news and commentary 7/12/06
More Bauer Against the Bail Out Amendment
Here
<http://www.moresoftmoneyhardlaw.com/updates/the_supreme_court.html?AID=
766> .
"The FEC's (Once Again) Flawed Coordination Rules"
Don Simon has written this post
<http://www.clcblog.org/blog_item-39.html> for CLC Blog on the new
Shays-Meehan lawsuit
<http://www.clcblog.org/assets/attachments/Complaint_with_stamp.pdf> I
noted yesterday. Bob Bauer comments on the lawsuit here
<http://www.moresoftmoneyhardlaw.com/updates/enforcement.html?AID=764>
and here
<http://www.moresoftmoneyhardlaw.com/updates/federal_candidates_officeho
lders.html?AID=765> .
Ballot Measure Analysis
The Initiative and Referendum Institute has issued this report
<http://www.iandrinstitute.org/BW%202006-1%20%28July%20Preview%29.pdf> ,
"Early Look at 2006 Ballot Measures." Meanwhile, Dale Oesterle has
written The Risk of Wedge Citizen Initiatives
<http://moritzlaw.osu.edu/electionlaw/comments/2006/060711.php> for the
OSU website.
"Voting Rights Act Renewal Divides GOP"
The LA Times offers this report
<http://www.latimes.com/news/politics/la-na-voting12jul12,1,4818779.stor
y> . See also this A.P. report
<http://www.guardian.co.uk/worldlatest/story/0,,-5945856,00.html> .
"Meehan, Shays File BCRA Suit"
Roll Call offers this report
<http://www.rollcall.com/issues/52_4/news/14221-1.html> , which begins:
"Reps. Christopher Shays (R-Conn.) and Marty Meehan (D-Mass.), the House
sponsors of the Bipartisan Campaign Reform Act of 2002, sued in federal
court Tuesday to block the new Federal Election Commission regulations
governing candidate coordination under BCRA."
"Split Remains on 527s"
Roll Call offers this report
<http://www.rollcall.com/issues/52_4/news/14218-1.html> (paid
subscription required), which begins: "After weeks without progress on
finishing a lobbying reform bill, Senate Republican leaders are trying
to break an impasse by scrapping controversial language added by the
House that curbs 527 political groups. But House negotiators so far have
balked at this approach, throwing into doubt prospects for resolving the
standoff before the August recess."
"VRA Renewal Faces Further Delay"
Roll Call offers this report
<http://www.rollcall.com/issues/52_4/news/14219-1.html> (paid
subscription required). See also Leaders Move Forward on VRA Bill
Despite Some GOP Unease
<http://thehill.com/thehill/export/TheHill/News/Frontpage/071206/vra.htm
l> in The Hill.
More Hearing Testimony
The Senate Judiciary Committee's July 10th hearing on the federal
observer provisions was a paper hearing only. Here is written testimony
on the "Continuing Need for Federal Examiners and Observers to Ensure
Electoral Integrity:"
Constance Slaughter-Harvey
<http://electionlawblog.org/archives/slaughter.pdf>
James Thomas Tucker <http://electionlawblog.org/archives/tucker.pdf>
Alfred Yazzie <http://electionlawblog.org/archives/yazzie.pdf>