McCain-Feingold Didn’t Change Express Advocacy, Nor Did McConnell

A mantra kept playing over and over again in my head while sitting through the Federal Election Commission meeting last Thursday: "McCain-Feingold didn’t change express advocacy, nor did McConnell."

At the meeting, the Commissioners considered an Advisory Opinion Request submitted by the National Right to Life Committee (NRLC).  The advice sought concerned whether the NRLC, as a (non-profit) corporation, could use general treasury funds to run two proposed ads that refer to Barack Obama during this election season.

The proposed ads neither used language expressly advocating the election or defeat of Democratic presidential candidate Obama, nor did they really comment on the current election.  Nevertheless, the NRLC wanted to be sure it could run the ads without running afoul of federal campaign finance laws, so the group wanted the FEC’s advice on two questions: (1) would the ads be prohibited as express advocacy, or (2) would the ads constitute impermissible electioneering communications?

These are different and separate legal questions that arise from different and separate statutory provisions that have been interpreted in different and separate Supreme Court decisions.  But you wouldn’t necessarily think there was any difference or separation at all if you had listened to how Commissioner Ellen Weintraub explained her thinking.

In opening the discussion, Weintraub noted that "a lot of people like the ‘magic words’ test" but, in her view, the Supreme Court had "expanded" the regulatory authority of the FEC to "the functional equivalent of express advocacy."

Okay, fine so far.

Weintraub was correct that the Supreme Court had upheld the "electioneering communications" provision enacted by Congress as a part of McCain-Feingold, a.k.a. the Bipartisan Campaign Reform Act of 2002.  After all, in McConnell v. FEC, the Supreme Court specifically interpreted that provision and explained that Congress could constitutionally regulate a narrow set of broadcast ads that referred to a federal candidate in the weeks before elections because the First Amendment permitted regulation of not only "express advocacy" but also its "functional equivalent."  And, several years later, in FEC v. Wisconsin Right to Life, the Supreme Court established the standard for when certain broadcast ads were the "functional equivalent" of "express advocacy."

But then Weintraub went a step too far.  In continuing her comments, Weintraub collapsed any distinction between "express advocacy" and its "functional equivalent" by stating her belief that the sole issue for the FEC was whether the NRLC ads went "over the line established in Wisconsin Right to Life."

That was, quite simply, wrong.

Now this might all sound like technical campaign finance talk to most everyone, but it’s important.  You see, as an implementing agency, the FEC can only regulate based on laws passed by Congress, as interpreted by the courts.  In other words, the FEC has to get its regulatory authority from somewhere, and that somewhere is from the people’s elected representatives who enact the law.

But Congress has never passed a law that permits the FEC to broadly regulate both "express advocacy" and its "functional equivalent" as "expenditures."  Instead, Congress has passed separate and different laws — one regulating "expenditures," which the Supreme Court narrowly defined as being limited to "communications that expressly advocate the election or defeat of a clearly identified candidate," and an another regulating certain broadcast advertisements known as "electioneering communications," which the High Court upheld as regulating the "functional equivalent" of "express advocacy."

In other words, both Congress and the Supreme Court have been clear that, in passing the "electioneering communications" provision, Congress did not touch the long-standing provision in the Federal Election Campaign Act concerning "expenditures."  This is important because, while certain "electioneering communications" can be regulated, that does not mean that Congress enlarged the FEC’s authority to regulate "expenditures" beyond the "express advocacy" boundary established in Buckley v. Valeo.  (Indeed, the Center for Competitive Politics pointed this out in comments to the FEC.)

As a result, Weintraub was wrong Thursday to collapse "express advocacy" and its "functional equivalent" by saying that the sole question was whether the NRLC’s ads went "over the line established in Wisconsin Right to Life."  After all, the Supreme Court only interpreted the "electioneering communications" provision in that case, and the standard established there has absolutely nothing to do with what constitutes an "expenditure."  Both before and after McCain-Feingold, McConnell, and Wisconsin Right to Life, "expenditures" were and are limited to "express advocacy" — not its "functional equivalent."

This is an especially important distinction and extremely dangerous territory because, as has long been true, more than $1,000 of "expenditures" triggers "political committee" status, bringing all sorts of regulatory burdens, including source prohibitions, contribution limits, and reporting and organizational requirements.  So it is of paramount importance that the FEC not jump the gun — which can only be fired by Congress — by suggesting that McCain-Feingold or the Supreme Court’s interpretation of McCain-Feingold changed the "express advocacy" rules for the "expenditure" game.  That will only occur if and when Congress changes the definition of "expenditure."  Until then, the "magic words" test continues to survive.