Campaign Finance Reform: A Sourcebook

By Anthony Corrado; Thomas E. Mann et al. | Go to book overview

NOTES
1.
The D.C. Circuit cited with approval another issue advocacy case decided in 1972 by the Second Circuit, United States v. National Committee for Impeachment, 469 F.2d 1135, 1142 (2d Cir. 1972). The Department of Justice had prosecuted a group that took out newspaper advertisements urging the impeachment of President Nixon for failure to register as a political committee under the disclosure provisions of the 1971 act (document 2.8). The Second Circuit held that communications primarily directed toward advocacy of a position on a public issue, rather than urging a vote for or against a candidate, did not qualify as an election expenditure, and thus did not trigger political committee status.
2.
The Court did not state whether the foregoing list was exhaustive. Most commentators, however, do not regard the list as being so, and this reading is consistent with language in the Court's opinion. Buckley, 424 U.S. at 44 n.52 (describing the list of terms as "express words of advocacy of election or defeat, such as 'vote for,' 'elect' . . .") (emphasis added).
3.
Because the Court found the MCFL newsletter to be express advocacy, it ruled that MCFL's expenditures violated the FECA. The Court then ruled that the ban on federal election expenditures by incorporated entities was unconstitutional as applied to issueoriented organizations such as MCFL, and other 501(c)(4)-type organizations that are not themselves funded by for-profit corporations. In reaching this conclusion, the Court first noted that the expenditures were made independently of any candidate ("independent expenditures 'produce speech at the core of the First Amendment'") (quoting Federal Election Commission v. National Conservative Political Action Committee, 470 U.S. 480, 493 ( 1985) ("NC PAC") (invalidating a $1,000 cap on independent PAC expenditures); Buckley, 424 U.S. at 39 (invalidating $1,000 limit on independent individual expenditures). Second, the Court relied on several institutional aspects of MCFL that differentiated the organization from most corporations. These aspects included that MCFL "was formed for the express purpose of promoting political ideas, and cannot engage in business activities," "has no shareholders or other persons affiliated so as to have a claim on its assets or earnings," and "was not established by a business corporation or a labor union, and [has a] policy not to accept contributions from such entities"; MCFL, 479 U.S. at 264. For a fuller discussion of MCFL, see chapter 3.
4.
MCFL, 479 U.S. at 249 (concluding that the MCFL publication provides "in effect an explicit directive: vote for these (named) candidates") (emphasis added); (acknowledging that the electoral message in MCFL is "marginally less direct than 'Vote for Smith' [and the other terms identified in Buckley]").
5.
See Colorado Republican Federal Campaign Committee v. Federal Election Commission, 116 S. Ct. 2309 ( 1996) (holding that political parties have a constitutional right to make unlimited independent expenditures) (document 3.4).
6.
In Colorado Republican, the Supreme Court remanded to the lower courts the issue of whether political parties have a constitutional right to make unlimited coordinated expenditures.
7.
"Proposed Rules", Federal Register, vol. 62, no. 86 ( May 5, 1997), p. 24372.

-239-

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