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_officeholders.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.story> . 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.html> 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>