The FEC has responded to Judge Sullivan’s option to open a new rulemaking on 527s or better explain its past actions. The Commission chose to explain, and recently issued a latest Explanation and Justification for its 2004 rulemaking on political committee status.
Everything we discuss at CCP is a 527 under tax law: party committees, PACs, candidate campaigns, and outside organizations like Swift Vets or MoveOn.org. So to be clear, what everyone is interested in, including Judge Sullivan, is how the rulemaking will affect the 527s you heard so much about in the 2004 election cycle; 527s that everyone concedes did not coordinate a penny of their activities with candidates or party committees; 527s that did not spend a penny on what anyone in 2004 would have called express advocacy.
The Commission begins it latest explanation admirably, saying that nothing in BCRA or McConnell alters Buckley’s interpretation of the core provisions of FECA, including the definition of “political committee” and that definition’s most critical element, the term “expenditure.” This is a truth too long obscured in too many quarters, and the Commission should be credited for shining needed light on the subject. The Commission says rightly that “expenditure” still means “express advocacy,” and the McConnell Court hasn’t changed that: “Neither BCRA, [nor] McConnell has eliminated … the Supreme Court’s express advocacy requirement for expenditures on communications made independently of a candidate.”
What is unfortunate, however, is that the Commission turns right around and says the McConnell Court changed express advocacy: “The Commission was able to apply the alternative [express advocacy] test set forth in 11 CFR 100.22(b) free of constitutional doubt based on McConnell’s statement that a[n express advocacy] test was not constitutionally required. …”
The Commission believes it can ignore the import of its earlier statement — FECA requires Buckley-based express advocacy — and use McConnell to resuscitate a definition of express advocacy (at 100.22(b)) invalidated by several appellate courts. Nothing could be more erroneous, and nothing arrogates to the Commission more power to hunt groups it has no business hunting.
With BCRA Congress wanted to reach broadcast advertising beyond express advocacy, but was unsure the Supreme Court would accept it. So Congress left in place FECA’s source restrictions on “expenditures,” which left in place the Court’s interpretation of that term; express advocacy. To achieve its purpose, Congress added source restrictions and reporting requirements (but not contribution limits) for another kind of ad, “electioneering communications”; ads that went beyond express urgings to elect or defeat a candidate.
The McConnell Court responded to Congress’ efforts in pretty much the following manner. “Said” the Court:
Congress has shown an interest in regulating broadcast ads that mention candidates near an election; we’re awash in sham issue advocacy. Congress is addressing the matter with its “electioneering communications” provisions.
These electioneering communication provisions are not unconstitutionally vague (and if anyone thinks they are unconstitutionally overbroad, that person may file an as-applied challenge).
Electioneering communications are not express advocacy, to be sure, but express advocacy is not constitutionally required; indeed, we believe the express advocacy test has become functionally meaningless in separating campaign ads from issue ads.
However, express advocacy was required in construing FECA, and Congress has not amended any core provisions of FECA. As an Article III tribunal bound by the case or controversy doctrine, we cannot go back and reinterpret provisions Congress hasn’t amended. [And, if we can’t do it, a regulatory commission bound by our rulings can’t really do so, either].
Even as we are inclined to think that express advocacy is functionally meaningless, Buckley – including the express advocacy gloss on the definitions of “expenditure” and “political committee” — still controls FECA.
We anticipate Congress may make future changes to FECA, but only then would we be permitted to take a fresh look at Buckley’s application to its provisions.
The Commission sees the McConnell Court’s approval of electioneering communications as license to expand drastically the definition of express advocacy. This is one of two fundamental errors the Commission makes in its rulemaking (the other we will discuss at another time). The McConnell Court didn’t change express advocacy, it just said that other tests may be constitutional, to be determined if and when Congress creates them. If the McConnell Court had said that electioneering communications now mark the outer bounds of express advocacy, or are a kind of express advocacy, that would be one thing. But the McConnell Court said that electioneering communications are not express advocacy, even though they are constitutional.
The Commission takes the McConnell Court’s approval of a clear test beyond express advocacy as license to adopt a vague test in the name of express advocacy. The McConnell Court approves, in electioneering communications, a test in search of discrete candidates discussed within a discrete number of days of an election that reaches a discrete number of voters. The Commission’s test looks for communications that when “taken as a whole, with limited reference to external events … could only be interpreted by reasonable people” as being “unmistakable”.
Vagaries such as the Commission employs would not have survived the very tribunal it cites in its latest explanation and justification; the McConnell Court would not have called this “express advocacy.” It was the McConnell Court that denigrated express advocacy’s strictures to justify a need for electioneering communications (and the Commission’s test goes well beyond the standard articulated in Furgatch by not requiring a clear plea for action, and clear reference to what action is advocated). It is relevant not just that dozens of appellate opinions have followed Buckley to limit the term “expenditure” to express advocacy. What is relevant here is that some of those courts have said the Commission’s 100.22(b) definition of express advocacy is not express advocacy. (see Christian Action Network and Maine Right to Life). Nothing in McConnell changes this.
It is odd indeed that the Commission invokes the actions of the McConnell Court to resuscitate its failed definition of express advocacy at 100.22(b). BCRA specifically forbad the McConnell Court from reaching the constitutionality of 100.22(b). See 2 U.S.C. 434(f)(3)(A)(ii). This means that nothing said in McConnell can, as a matter of law, affect the validity of the two federal court opinions saying, directly, that 100.22(b) is unconstitutional.
And the McConnell Court did not reach the backup definition of electioneering communications, which employs PASO language applied to citizens, not members of State party committees. Even if a citizen-applied-PASO test were held constitutional in McConnell, and if one could argue that PASO is a functional equivalent of the Commission’s express advocacy definition at 100.22(b), that would leave us with two things to consider: First, the backup definition of electioneering communications would apply “whether or not [a communication] expressly advocates the election or defeat of a clearly identified candidate.” Yet, second, the Commission’s earlier statement concedes that nothing “has eliminated … the Supreme Court’s express advocacy requirement for expenditures on communications made independently of a candidate.”
It appears then that the Commission invokes McConnell to redefine “express advocacy” in an effort to reach activity for which it admits a lack of authority, perhaps because it worries others won’t understand the Commission lacks authority; not even Judge Sullivan. And in this maelstrom of “reform” misinformation, who could blame them?
But blame or no, the Commission’s interpretation deserves to be challenged, and, with any luck, from a speech-protective posture next time around.
