I want to know how this principle, this issue that you’ve brought before us, how this is gonna play out in hundreds of other cases…. I am not about to do justice to your client at the expense of creating injustice in hundreds of other cases that will never come before me, that I will never see.
– Justice Antonin Scalia (at 15:27 – 17:18)
We know, from First National Bank of Boston v. Bellotti, that corporate-funded issue advocacy cannot be banned. And we know that, if those issue-advocacy organizations do not coordinate activity with candidates nor make contributions to candidates in any way, the organizations are free to speak about issues without impediment. Correct?
Well, no. For under existing law, an elections commission can depose the organization’s donors to determine the donors’ understanding, and may subpoena documents to determine the organization’s “purpose.” The process can tie-up the organization in a years-long investigation into whether it should register as a “political committee,” no matter the nature of the organization’s communications.
Is this a system of untrammeled issue advocacy? Is this allegiance to Bellotti?
We just learned, from FEC v. Wisconsin Right to Life, that an organization may use corporate or union treasury funds for genuine issue advocacy mentioning candidates over broadcast media right up to the day of the election: the communications do not corrupt politicians in any way. If the organization does not coordinate activity with nor make contributions to candidates, the organization may speak unimpeded.
But this too is not the case. For organizations availing themselves of rights recognized in WRTL II can be the subject of a complaint and hauled before a commission, again, to determine the understanding of the donors and get to the bottom of the organization’s “major purpose.”
The Court in WRTL II said that any investigation into the nature of the ad — Is it electoral advocacy or issue advocacy? — cannot be determined by means of extensive discovery or on the “rough-and-tumble of factors” into the speakers’ intent. Yet, this is precisely the process by which commissions determine the nature (read: “purpose”) of the organization.
Does this system foster genuine issue advocacy? Does it show fealty to WRTL II?
The American Leadership Project is the subject of such a complaint: “Because ALP has accepted contributions well in excess of $1,000, and because its major purpose is to influence the outcome of the Democratic primary election, ALP is a political committee under FECA.” Complaint at 7. The complaint doesn’t allege coordination, and doesn’t allege that the organization makes contributions to candidates. It doesn’t even allege that the communications, the very offense that gave offense, are express advocacy because the communications are, by any measure, genuine issue advocacy protected by WRTL II. Yet ALP and its donors face regulatory scrutiny and legal jeopardy. “If the Commission is unable to act expeditiously,” the Commission is told, “it … should … refer the matter to the Department of Justice.” Id. at 10.
Such is the apparent power of “major purpose.”
There are several 501(c)(4) organizations operating recently. Common Sense Issues is a noted example. The organizations guide their conduct by the Supreme Court’s guidance in FEC v. Massachusetts Citizens for Life (MCFL), and run express advocacy communications with individual funds. They are not coordinating their activity with candidates, but, politics being what it is, will likely be subjected to an investigation into the nature of their solicitations to donors and their “major purpose.”
“Contribution” plus “major purpose” equals “political committee” status, no matter the nature of an organization’s communications. This derives from the statute; there’s no denying it. But the Federal Election Commission’s latest definition of “contribution” is based on a construction of “contribution” made by a court in Survival Education Fund v. FEC. And that court stated in three places that its construction extends only to those instances that pose, and cure, a threat of candidate corruption. No corruption is posed here.
The same for “major purpose.” The election bar and courts need to close the loop on a widely held concept: “Major purpose,” or more precisely, the lack of an electoral one, is an added shield against registration for organizations that show some potential for corruption. “Major purpose” is not a sword, and is not itself a form of corruption. Therefore, in the absence of any form of corruption recognized by the Supreme Court, an inquiry into an organization’s “major purpose” is immaterial, and damaging.
The dicta in MCFL pertaining to “major purpose” must be reviewed with this in mind.
Future SpeechNows could preemptively register to avoid regulatory harassment and intimidation from opponents. There is no reason they should be made to do so: the Supreme Court has held that registration and all that comes with it is unconstitutionally burdensome for such independent organizations, and the Act provides more narrowly tailored reporting for organizations “other than political committees” that meets all applicable government interests. But organizations like SpeechNow.org could do it.
Organizations operating under Bellotti or WRTL II, however, could not preemptively register to avoid harassment or intimidation. To register is to succumb to the funding-source prohibition, and Bellotti and WRTL II exist to remove the source prohibition. 501(c)(4) organizations operating under MCFL cannot preemptively register for a related reason. Conceding a “major purpose” of campaign activity to avoid complaints and investigations would vitiate their tax status.
If the precedent coming out of the SpeechNow litigation is that express-advocacy organizations whose independence both from candidates and “corruption” is firmly established do not trigger registration no matter their major purpose, then equally independent issue advocates will not fear the threat of complaint or investigation into donor understandings and “major purpose.” But if the precedent coming out of SpeechNow is that independent and non-corrupting organizations still can be made to register solely on the basis of their "major purpose," then the threats to issue advocates and 501(c)(4) organizations will continue unnecessarily and unabated in "hundreds of other cases."
This is the issue pregnant within SpeechNow.org; it is, as Justice Scalia would say, “the core of it.” It is an issue far beyond those addressed in NCRL v. Leake, and is one on which the courts must engage. The important issue of contribution limitations, already subsumed within the question of political committee status, is, particularly in light of Leake, fast becoming an also ran.
