Goodbye to Voter Guides? Frankenstein’s Monster Strikes Again

Years ago the Wall Street Journal described campaign finance reform as "Frankenstein’s Monster."  It still is.  Not that we didn’t know that already, but the latest reminder comes in a confused Federal Election Commission ruling fining the Sierra Club $28,000 for illegal corporate spending, based on  voter scorecards issued in Florida in 2004.  The decision is of interest on many levels.

 First is the legal matter.  Campaign finance groupies will know that in the 1976 case, Buckley v. Valeo, the Supreme Court held that, to avoid unconstitutional vagueness, only ads that contained "express advocacy" were subject to regulation under the Federal Election Campaign Act ("FECA").  And express advocacy meant a specific exhortation to vote, such as "vote for," "vote against," "support," "defeat" and the like.  Therefore, voter guides that do not expressly advocate the election or defeat of particular candidates are not subject to the ban on corporate expenditures in political races. 

We won’t go through all of the FEC’s legal reasoning and the precedents on which it mistakenly relies, all of which is far too complex for a short blog post.  The FEC’s confusion may be found, however, in its press release, which alternately argues that the Commission found that "express advocacy" was present (it wasn’t – if this is the Commission’s finding it is erroneous) and the claim that the Supreme Court’s decision in McConnell v. FEC (upholding the McCain-Feingold law) "made clear that ‘express advocacy’ was not a constitutional boundary" that restrains the Commission anyway – an odd argument to make if the Commission indeed found "express advocacy."  It’s also an irrelevant legal argument.  For while the McConnell Court did hold that "express advocacy" was not the only legal standard that could meet the problem of unconstitutional vagueness, it did not overrule its core Buckley holding that whatever the standard adopted, it could not be unduly vague.  And the Commission regulation under which the Commission appears to have found a violation – 11 C.F.R. Section 100.22(b) – has repeatedly been held to be unconstitutionally vague by Federal courts. 

The Commission reaches the conclusion that there is "express advocacy" by arguing that a combination of loaded descriptions of the issues (for example, President Bush’s position on one issue is described as "has refused to support the ‘polluter pays’ principle, which would require corporations to fund the cleanup of abandoned toxic waste sites, including the 51 in Florida.  Instead, he has required ordinary taxpayers to shoulder the cleanup costs;"  Senator Kerry 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.") combined with urging viewers to,  “LET YOUR CONSCIENCE BE YOUR GUIDE,” and "LET YOUR VOTE BE YOUR VOICE,” constitutes express advocacy.   Sounds pretty obvious, doesn’t it?  But what we will do when the next guide merely states that Senator Kerry or his successor, "supports the ‘polluter pays’ principle, which would require corporations to fund the cleanup of abandoned toxic waste sites, including the 51 in Florida.  Opposes requiring ordinary taxpayers to shoulder the cleanup costs?"  Or when legislation is described as, "would require corporations to fund the cleanup of abandoned toxic waste sites, including the 51 in Florida," and one candidate is listed as "supports" and the other as "opposes?"  

And just how should a group describe a bill?  Can Right to Life still describe a bill as "pro-life?" Can the National Abortion Rights Action League still describe a bill as "anti-choice?"  These are just the questions that the bright line express advocacy standard was intended to – and largely did – resolve.  Apparently, that is gone, and efforts to use the legal process to silence the speech of political opponents and keep voters in the dark will now expand.  

Effective voter guides necessarily involve informing voters on what an issue means – most voters would gain very little if the issue was merely described as "S. 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 described itself as, "a bill to provide bipartisan campaign reform."  Isn’t that just a little biased?  It’s "bipartisan," and it’s "reform," both proven political winners,  A candidate listed in support, on a scorecard on "Congressional ethics," would surely benefit over a candidate listed as opposed. What should we do with the "Patriot Act?"  Recently, several groups asked Congressional candidates to sign a "Voters’ First" pledge, agreeing, among other things, to support highly unpopular taxpayer funding of campaigns.  Candidates who signed on were said to have, "pledged to put voters before lobbyists and donors."  Would that pass the Sierra Club test for avoiding taking sides in the election?  We don’t see how it could, since we assume – perhaps naively – that most voters would think it a negative if a candidate put lobbyists before voters.  Further, do we really want to say that voter guides should not encourage people to actually vote?  In short, as Brett Kappel, an election law expert with Vorys Sater Seymour and Pease, writes, the case, "pretty much spells the end for voter guides, at least as they have been structured to date."  No doubt, we will then hear more complaints that voter turnout is too low, and that voters don’t understand the issues, and are subject to manipulation by candidate "attack" ads – even ones in which the candidate, "approves this message."

There is some ironic justice here, among all the harm, and it is that the Sierra Club, back in 2001, ran issue ads criticizing Republican lawmakers for opposing the McCain-Feingold law.  But if the poetic justice of seeing a group that supported the law succomb to penalties brings some measure of bitter satisfaction, it cannot make up for all the harm the law has done. This decision is likely to give us less informed voters and more campaign litigation, with the FEC, clever lawyers,  and federal judges replacing voters to decide elections. 

At this point, only the most zealous, extremist "reformers" still claim that McCain-Feingold has yielded net benefits.  Most everyone else recognizes it, as the Wall Street Journal called it years ago, as a Frankenstein’s monster, that can’t be killed and can’t be stopped, but that wreaks havoc wherever it goes.