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Years ago, a national newspaper described campaign finance reform as “Frankenstein’s monster.” It still is. The latest reminder comes in a confused Federal Election Commission ruling that fines the Sierra Club $28,000 for illegal corporate spending, based on voter scorecards issued in Florida in 2004.
Campaign finance groupies will know that in the 1976 case, Buckley v. Valeo, the Supreme Court, to assure robust discussion of political issues and to avoid constitutionally unacceptable vagueness, construed the Federal Election Campaign Act to regulate only ads that contained “express advocacy.”
Therefore, voter guides that do not expressly advocate the election or defeat of particular candidates have not been subject to the ban on corporate expenditures in political races. The decision also defined “express advocacy” as a specific exhortation to support or oppose a candidate at the polls, such as “vote for,” “vote against,” “support,” “defeat” and the like.
The Sierra Club’s scorecards avoided such terms, and any explicit exhortation to vote, but did contain loaded descriptions of the issues. President Bush was described as having “refused to support the ‘polluter pays’ principle, which would require corporations to fund the cleanup of abandoned toxic waste sites,” and having “required ordinary taxpayers to shoulder the cleanup costs.”
In contrast, his opponent, Sen. John Kerry (D-Mass.), was described as “a leader on cleaning up toxic waste sites” who would “hold polluting companies responsible for paying to clean up abandoned toxic waste sites.” These descriptions were combined with exhortations to “LET YOUR CONSCIENCE BE YOUR GUIDE” and to “LET YOUR VOTE BE YOUR VOICE.” Based on this, the commission found express advocacy despite the absence of the language from Buckley.
The commission’s conclusion may seem intuitively obvious, but abandoning the clarity of the bright-line standard carries a heavy cost. Suppose the next guide merely states that a candidate “supports the ‘polluter pays’ principle, which would require corporations to fund the cleanup of abandoned toxic waste sites, and opposes requiring ordinary taxpayers to shoulder the cleanup costs.” Or suppose that, following that same description of the legislation, the guide lists one candidate as “supports” and the other as “opposes.” Wouldn’t both of these examples fail the new Sierra Club test?
Effective voter guides necessarily involve informing voters about the issues — most voters would gain little from simply knowing how their Congressman voted on “H. 1346.” And frankly, the official titles and purposes of most bills are as loaded as any description that a group might use in a voter guide. For example, the McCain-Feingold bill declared that its purpose was “to provide bipartisan campaign reform.” Isn’t that just a little biased? It’s labeled “bipartisan” and a “reform,” both proven political winners. A candidate listed in support of “bipartisan reform” on a scorecard on “Congressional ethics” surely would benefit over a candidate listed as opposed.
Should a voter guide not encourage people to “vote their conscience”? May the National Right to Life Committee still describe a bill as “pro-life”? Can NARAL Pro-Choice America still describe a bill as “pro-choice”? These are just the type of questions that the bright-line express advocacy standard was intended to resolve — and largely did.