Vol. VII, No. 1January - February 1999

FEC Solicits Comments On Express Advocacy
In addition, pursuant to a Petition for Rulemaking, the FEC is soliciting comments as to whether its definition of "express advocacy" should be revised to reflect recent court decisions. The FEC currently defines express advocacy as a communication that unambiguously advocates the election or defeat of a federal candidate. There are two competing tests of express advocacy, magic words and reasonable person. So-called Magic words (11 CFR 100.22) involve statements such as "vote for X", "re-elect X," "support the Democrat nominee," "X for Congress," "X in '98," "defeat X," "reject the incumbent," "Carter '76," or "Clinton/Gore." Also, statements such as VOTE PRO-LIFE with a list or photos of pro-life candidates constitute magic words. The reasonable person test (11 CFR 100.22) applies where a "reasonable person" could only conclude that a communication, when taken as a whole and with limited reference to external events, advocates the election or defeat of one or more clearly identified federal candidates.

Efforts by the FEC to enforce the reasonable person test have been unsuccessful in the federal courts; nevertheless, it has refused to remove the reasonable person test from the regulations. If the Petition for Rulemaking is successful, the FEC will issue a Notice of Proposed Rulemaking before changing the regulations. The Free Speech Coalition plans to submit comments on the Petition for Rulemaking. Comments are due by the March 5, 1999 deadline.

U.S. Supreme Court To Review Campaign Contribution Limits
On January 25, 1999, the U.S. Supreme Court granted certiorari to a November 1998 decision (Shrink Missouri Government PAC v. Adams, et al., by the U.S. Court of Appeals for the Eighth Circuit). The Eighth Circuit's decision struck down a Missouri statute placing a $1,000 (adjusted for inflation) limit on election contributions to candidates for statewide office (with lower limits for state representatives and senators, and candidates for local office). The Missouri statute's contribution limit was designed to reflect the U.S. Supreme Court's 1976 decision in Buckley v. Valeo, which had upheld a $1,000 limit on contributions to candidates in federal elections.

The Eighth Circuit's decision observed that the Missouri had submitted no demonstrable evidence of "real or perceived undue influence or corruption attributable to large political contributions" in Missouri at the present day. The court of appeals refused to rely on the evidence cited by the Buckley Court regarding the effect of large contributions on federal campaigns more than 20 years ago, and found no proof of a compelling interest served by the Missouri statute's restrictions on campaign contributions. Since the contribution limits were not narrowly tailored to achieve a compelling state interest, they were struck down as unconstitutional.

The U.S. Supreme Court's acceptance of the appeal in the Missouri case (sub nom. Nixon v. Shrink Missouri Government PAC ("Nixon")) may be due to an apparent conflict between the Eighth Circuit's decision and a decision of the U.S. Court of Appeals for the Sixth Circuit in the case Kentucky Right to Life v. Terry, which upheld Kentucky's $1,000 limit on contributions to candidates for state and local office as "not different in kind from the $1,000 limitation on direct contributions" upheld in Buckley. The Supreme Court may use Nixon to re-examine the constitutionality of contribution limits.

State Attorneys General File Their Amicus Brief Late In ATA Case
As anticipated, 24 State Attorneys General have filed an amicus brief in American Target Advertising ("ATA") v. Giani, now before the Tenth Circuit Court of Appeals. ATA filed suit against the Director of Utah's Division of Consumer Protection when she tried to force ATA to register with the state (solely because a client of ATA's had mailed into Utah). In another demonstration of the attitude that government regulators know best, the amicus brief was filed well after the date it was due. Attorneys General from Arkansas, California, Illinois, Indiana, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Vermont, Virginia, Washington State, and West Virginia signed onto the brief, as well as government representatives of Hawaii, Mississippi, and Pinellas County, Florida. According to ATA's attorney Mark Fitzgibbons, Esquire, ATA has filed a motion to strike the amicus brief. ATA attorney Fitzgibbons added that oral argument in the case is expected in May.

The Free Speech Coalition, Inc. is a nonpartisan, nonprofit 501(c)(4) organization which educates, lobbies, and litigates to defend the rights of advocacy organizations and their members. FSC needs your support to continue its fight to protect the rights of citizens to associate together and exercise their First Amendment right to petition their government for redress of their grievances. Contributions to the Free Speech Coalition, Inc. are not tax-deductible. However, contributions to the Free Speech Defense & Education Fund, Inc., a 501(c)(3) public charity, are tax-deductible.