Roll Call
December 1, 1997
NEW THINK TANK ASKS FEC TO CHANGE KEY REGULATION
by Amy Keller
Sen. Mitch McConnell's (R-Ky) new think tank, the James Madison Center for Free Speech, has asked the Federal Election Commission to change the definition of "express advocacy" in an apparent attempt to make it easier for groups to spend unregulated funds on political advertising.
Express advocacy - a household term among the campaign finance reform crowd - is the standard by which the FEC tests communications to determine whether they are subject to regulation under the Federal Election Campaign Act.
But in an Oct. 13 letter to the FEC, James Bopp, general counsel to the James Madison Center, asked the watchdog agency to institute a rule-making proceeding to repeal part of the definition of express advocacy, arguing that it was effectively invalidated by a recent decision of the 1st US Circuit Court of Appeals.
Once an obscure term, "express advocacy" has received a lot of attention in recent months as reform-minded Members of Congress have advocated expanding the definition of express advocacy to curb the flow of "issue advocacy" advertising.
But the James Madison Center is asking the FEC to go in the opposite direction.
McConnell and his allies don't have a problem with the first part of the FEC's definition of express advocacy, which delineates a so-called "magic words test." That section states that only if a communication uses the words like "vote for," "vote against," "re-elect," or "support the Democratic nominee," is it considered to be expressly advocating the election or defeat of a candidate, and therefore subject to contribution limits, disclosure requirements, and other FEC regulations.
But part (b) of that regulation - which Bopp wants off the books - gives the FEC more room for interpretation.
Under that section, the FEC may conclude that express advocacy has occurred if a communication "when taken as a whole and with limited reference to external events, such as the proximity to the election, could only be interpreted by a reasonable person as containing advocacy of the election or defeat of one of more clearly identified candidates."
That wording was added by the FEC in 1995, after the agency won two court victories allowing it to go beyond key phrases for determining that electioneering was taking place.
One of those was the 1986 case FEC v. Massachusetts Citizens for Life, in which the Supreme Court affirmed that the FEC could regulate a supposedly nonpartisan voter guide published by a non-profit group using criteria beyond magic words. The other was the 1987 case FEC v. Furgatch, in which the 9th US Circuit Court of Appeals wrote that express advocacy is "not strictly limited to communications using key phrases."
But it was the anti-regulatory McConnell crowd that won a decisive victory in the more recent case of Maine Right to Life Committee v. FEC, in which the 1st US Circuit Court of Appeals ruled that part (b) of the definition of express advocacy was unconstitutional.
"As a result," Bopp wrote in his letter to the FEC, "the James Madison Center for Free Speech calls upon the Commission to institute new rule-making proceedings to repeal Subpart (b)."
"This action," Bopp argued, "is necessary to conform the FEC's regulation to the courts' rulings in MRLC and to repudiate the FEC staff's position that these invalid regulations may, in any event, be enforced against others outside the First Circuit."
But Bopp's opponents see it differently.
"His petition is bogus. He's wrong as a matter of law," argued a Congressional aide who works on campaign finance reform issues.
"When the circuits are split, it just means the circuits are split....Agencies can enforce regulations where they are valid, and they can't enforce them where they are not valid," the aide said.
"Bopp is making our case for why Congress needs to act on campaign finance reform. The courts and FEC regulations are flush with inconsistencies....Congress is in a great position to clarify all of this," he added.