FEC OPEN MEETING - NOVEMBER 16, 2000

Today the Commission will consider new regulations regarding Expenditures for General Public Political Communications Coordinated with Candidates. I believe that these regulations are a positive step forward for the Commission, and I would like to thank Rosemary Smith and the OGC staff, and especially Commissioners Sandstrom and Mason, for their hard work on this project.

The question of coordination has long been a difficult one for the Commission. In 1996, in Colorado Republican Federal Campaign Committee v. Federal Election Commission ("Colorado I"), the Supreme Court rejected the Commission’s position that political parties are presumptively incapable of making expenditures independently of their candidates. On remand in this case ("Colorado II"), the U.S. Court of Appeals for the Tenth Circuit held that even coordinated expenditures by parties could not be limited, on the theory that political parties cannot corrupt their own candidates for office. That case is once again on appeal to the Supreme Court.

More to the point, in 1997, in Clifton v. Federal Election Commission, the U.S. Court of Appeals for the First Circuit invalidated FEC regulations pertaining to coordination in the context of preparing voter guides. Similarly, in Federal Election Commission v. Public Citizen, Inc., a federal district court in the 11^th Circuit rejected the Commission’s theory of coordination based on contacts between agents of Public Citizen and a candidate’s campaign, including discussion about strategy and issues. And in Federal Election Commission v. Christian Coalition, the U.S. District Court for the District of Columbia rejected the Commission’s sweeping theory of coordination, which the Court termed the "insider trading" standard and described as "any consultation between a potential spender and a federal candidate’s campaign organization about the candidate’s plans, projects, or needs…." Rather, the Christian Coalition Court held that coordination occurs only where:

"the candidate or her agents can exercise control over, or where there has been substantial discussion or negotiation between the campaign and the spender over, a communication’s: (1) contents; (2) timing; (3) location, mode, or intended audience (e.g. choice between newspaper or radio advertisement); (4) ‘volume’ (e.g. number of copies of printed materials or frequency of media spots). Substantial discussion or negotiation is such that the candidate and spender emerge as partners or joint venturers in the expressive expenditure…."

The proposals before us today largely follow Judge Green’s ruling in Christian Coalition. This is not because we are slavishly following a "lone district court," as some self-described "reform" groups have suggested, but because we believe on the merits that the Court’s definition of coordination was largely correct. These regulations set forth a definition of "coordinated general public political communications" that accounts for the realities of the political world, including the norms of political employment, in which individuals often bounce between candidate and party staffs, political consulting firms, and like-minded citizen groups, and in which citizen groups have both a need and a right to communicate with their elected officials about issues of mutual concern.

I understand that the usual critics of the FEC and its staff – among them the Brennan Center, Common Cause, and Democracy 21 - will complain that these regulations will make it more difficult to prove coordination. But the mere fact that a regulation sets forth a standard that provides broad protection to what we euphemistically call "the regulated community" (i.e., the American people), does not mean that the standard is wrong or unrealistic. It simply affirms that there are other important values at stake. Here those values are obvious – the right of Americans to engage in political discussion and activity and to petition their representatives for a redress of grievances.

We should be aware, of course, that the criticism of these regulations comes not only from those who feel that the proposed definition of "coordinated general public political communications" provides too much protection for political speech, but also from those who claim it provides too little. Some have argued that we ought to limit the definition of coordinated communications to those distributed primarily in the geographic area in which the candidate is seeking office. Others argue that it should specifically exempt any communication made more than 30 (or 60, or 90) days before an election. I might happily support such additions to this regulation, but there are legitimate arguments against these proposals and the Commission must act where there are votes. The bottom line is that these regulations are more protective of the rights of Americans to engage in political activity than are our existing regulations at 11 C.F.R. 109.1, and I am happy to support them on that basis.

One other safeguard that was urged on the Commission deserves particular attention. Several comments on the proposed rules urged the Commission to limit its reach only to communications containing "express advocacy" of the election or defeat of a candidate, as defined by the Supreme Court in Buckley v. Valeo and Federal Election Commission v. Massachusetts Citizens for Life ("MCFL"), and in numerous lower court decisions. Whether or not the case law requires such a restriction when dealing with coordinated, as opposed to uncoordinated expenditures is, I think, an open question. Certainly there is language in both Buckley and MCFL that would support such a conclusion, though this language is not decisive. My own view is that this would be the better interpretation of both the cases and the Constitution.

Nevertheless, the district court in Christian Coalition rejected this view. I do not find the Chrisitan Coalition court persuasive on this point, however. The judge’s concern over "coordinated attack advertisements, through which a candidate could spread a negative message about her opponent, at corporate or union expense, without being held accountable for negative campaigning," seems to me misplaced. If it were actually the candidate spreading the message, that would be a direct contribution to the campaign. Assuming that the judge meant that the spender would spread a negative message, we must note that that possibility was recognized in Buckley v. Valeo, wherein the Supreme Court recognized that non-candidate issue ads would be designed "that skirted the restriction on express advocacy of election or defeat but nevertheless benefited the candidate’s campaign," but found such activity to be constitutionally protected nevertheless. I also question whether or not Judge Greene’s position is factually correct – indeed it is the ardent claim of many in the self-described "reform" community, that voters cannot separate candidate ads from non-candidate ads. If true, it is hard to imagine they would not hold the candidate responsible for such negative ads.

Regardless, given this Commission’s long history of losing cases on constitutional grounds when we have attempted to enforce our regulations against speech not containing express advocacy, and given the important First Amendment concerns involved, my own view is that it would have been wise to err in favor of an express advocacy requirement. We are not required to forever interpret the statute so as to push our regulatory authority to the fullest extent of what we think the Constitution might allow, then look for a test case to prove it. Certainly we have lost enough test cases. In this light it is especially important to note that while these rules create a safe harbor for inquiries "regarding a candidate’s or party’s position on legislative or public policy issues;" require that coordination may be found only where the party or candidate exercises control over the specific commands at issue; and limit coordination to cases involving "substantial discussion or negotiation;" they do not eliminate the chilling effect of the regulations on political speech.

Indeed, I fear that these regulations have the potential to worsen the chilling effect that threats of enforcement can have on speech. For example, our enforcement action against the Christian Coalition lasted over six years. It included 81 depositions, including those of past and present employees and volunteers. Over 100,000 pages of documents were produced, at great expense to the Coalition. I can only imagine the Coalition’s legal fees, and the effect all this has on political participation generally. As one deponent stated, the main thing he had learned from the case was, "Never volunteer for anything." Yet a tougher standard for establishing coordination, such as is proposed in these regulations, without an express advocacy safe harbor, may mean that future investigations will need to be even more intrusive. An ultimate finding against an investigated group is not necessary to scare citizens into abandoning constitutionally protected speech. The chilling effect that the mere possibility of such investigations can have on speech is enormous. I hope that someday soon the Supreme Court will consistently apply the same rigorous scrutiny to laws regulating political speech as it does to laws regulating topless dancing, internet pornography, and commercial speech. However, even under the Court’s looser standard of review, I believe it is quite likely that, having done a tremendous amount of work to come up with these regulations, we will find ourselves back on the wrong side of the Constitution in future litigation. Adopting an express advocacy standard would save us that possibility.

Despite these concerns, I can support these regulations because they specifically leave open the question of whether or not they apply to coordinated communications that do not include express advocacy. Our failure to answer this question will no doubt leave a great deal of uncertainty in the "regulated community," but when the Commission is divided, we need to act where we can. These regulations provide new clarity regarding express advocacy expenditures, and in that context are more protective of First Amendment rights and values than the regulations and practices they will supercede. Furthermore, they should allow more cases to be dismissed at the "Reason to Believe" stage, thus benefiting free and open political participation. I hope that we will someday have a majority of the Commission in favor of adding an express advocacy requirement to the regulations, but for now, I take comfort in knowing that the question is left open for another day – and that, too, I take to be an improvement over our current practice.

Despite their imperfections, I believe that on the whole these regulations are a significant positive step in respecting constitutionally protected speech and in restoring predictability to the Commission’s activities in the realm of coordinated expenditures, and I will support them today.

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