Dark Money Rises: Federal and State Attempts to Rein in Undisclosed Campaign-Related Spending

By Eagan, Kristy | Fordham Urban Law Journal, December 2012 | Go to article overview

Dark Money Rises: Federal and State Attempts to Rein in Undisclosed Campaign-Related Spending


Eagan, Kristy, Fordham Urban Law Journal


2. The Effect of Splits on Disclosure

At present, the FEC Commissioners are divided evenly over what constitutes express advocacy and electioneering communications, and over what types of activity qualify a group as a PAC. The effect of these splits is that the agency lacks the four votes necessary to commence enforcement proceedings against groups that, according to three of the Commissioners, are engaged in express advocacy, ECs, or that qualify as PACs, but have not complied with the requisite disclosure requirements. (219)

a. Defining Express Advocacy

The FEC is split over whether it acted outside of its statutory and constitutional authority in promulgating and continuing to enforce it's definition of "express advocacy" under [section] 100.22(b). (220) The FEC promulgated subsection (b) in 1995 after two courts held that express advocacy extended beyond the "magic words" of Buckley. First, in FEC v. Massachusetts Citizens for Life, the Supreme Court held that a detachable voter guide listing the names of pro-life candidates next to the words "Vote Pro-Life" was express advocacy. (221) The Court reasoned that the fact that the communication was marginally less direct than Buckleys magic words was not dispositive where the message supplied "in effect an explicit directive" to vote for the named candidates. (222) The following year, the Ninth Circuit held in FEC v. Furgatch that a newspaper ad criticizing the president, published three days before the presidential election, and asserting "DON'T LET HIM DO IT" was express advocacy. (223) The Court reasoned that express advocacy included words not listed by the Supreme Court in Buckley which, "when read as a whole and with limited reference to external events, [were] susceptible of no other reasonable interpretation than an exhortation to vote for or against a specific candidate." (224) The FEC subsequently revised [section] 100.22, adding to the list of examples of express advocacy in subsection (a) (225) and adopting subsection (b), which incorporates the language of Furgatch practically verbatim. (226)

Shortly after the FEC implemented [section] 100.22(b), several courts found it invalid on constitutional and statutory grounds. (227) As a result of these decisions, the FEC ceased enforcement of [section] 100.22(b) in those circuits that held it invalid. (228) In McConne11, the Supreme Court clarified by stating that Buckleys limiting construction was "a product of statutory interpretation, not a constitutional command." (229) In light of the Supreme Court's pronouncement, the Fourth Circuit in Real Truth About Abortion v. FEC reversed course, (230) and the FEC resumed enforcement of [section] 100.22(b). (231)

FEC Commissioners McGahn, Hunter, and Peterson believe that subsection (b) is unconstitutionally vague. (232) Commissioner McGahn makes two interrelated points. First, he maintains that [section] 100.22(b) is unconstitutionally vague to the extent that it reaches speech that is not express advocacy as the Supreme Court defined it in Buckley. (233) McGahn reads McConnellas only upholding the EC provisions to the extent that the speech being regulated is the functional equivalent of express advocacy. (234) He believes that the Supreme Court only upheld the EC provision regulating speech that was the functional equivalent of express advocacy because the provision contained objective triggers, which are missing from the express advocacy provision. (235)

Secondly, McGahn asserts that, even if subsection (b) could constitutionally regulate speech that was not express advocacy or its functional equivalent, it would still be unconstitutional because it is inherently vague. (236) He believes that subsection (b) contains several terms that are inherently vague and inconsistent with each other, such as the requirement that the FEC consider the communication "taken as a whole" as well as its "electoral portion." (237) McGahn argues that, unlike the EC provision, subsection (b) invites the FEC to consider "rough-and-tumble" factors, such as contextual references and general proximity to the election, that the Court ordered the agency to eschew, and which are sufficiently similar to the two-part eleven-factor test that the Supreme Court struck down in Citizens United. …

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