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Reformers claim Christian Coalition decision supports campaign-finance restrictions

Phillip Taylor
First Amendment Center

08.27.99

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A recent federal court decision rejecting claims that the Christian Coalition violated federal election laws by distributing voter guides clears the way for Congress to pass proposed campaign-finance reform measures, according to a recent position paper by three pro-reform groups.

But experts opposed to current reform efforts say the Brennan Center for Justice, Common Cause and Democracy 21 are merely trying to spin their loss in FEC v. Christian Coalition as Congress prepares to debate campaign finance next month.

"That's the kind of strategy they've been using. After all, their record in litigation is bad, but they are good at putting a good face on it," said Bradley Smith, an associate law professor at Capital University Law School in Columbus, Ohio. "If they want to claim this case as a great victory, I'm happy to oblige. But which side is more likely to appeal?"

U.S. District Judge Joyce Green on Aug. 2 ruled in FEC v. Christian Coalition that the coalition's voter guides and most of its get-out-the-vote efforts were not designed expressly to aid Republican candidates.

Federal election laws require disclosure by groups that contribute to political campaigns or expressly advocate a specific candidate. Green ruled that the bulk of the coalition's election expenses did not constitute a contribution to the Republican Party.

Green did agree that the coalition in 1994 improperly assisted both former House Speaker Newt Gingrich, R-Ga., in a reelection bid and Oliver North in his Senate campaign in Virginia. She said she would determine the fine later.

For years, the coalition has distributed the voter guides to churches on the Sunday before election days. After the FEC filed its lawsuit in 1996, the coalition vigorously defended its actions on free-speech grounds.

"The bottom line for the Christian Coalition is that they won. Their voter guides were determined by the judge to be nonpartisan and their distribution was not in violation of federal election law," said James Bopp, general counsel for the James Madison Center for Free Speech. "This, even given the fact that you had a federal agency that spent an enormous amount of resources on this case, including 81 depositions and requiring the production of hundreds of thousands of pages of documents."

But in a joint position paper released last week, the Brennan Center, Common Cause and Democracy 21 said the reform opponents have been "inaccurately hailing" Green's decision as a victory. The position paper was written by Fred Wertheimer, president of Democracy 21, Don Simon, executive vice president of Common Cause, and Deborah Goldberg, senior attorney for the Brennan Center.

Instead of barring reform efforts, the paper's writers contend that Green's decision swings the door wide open for meaningful changes in the way Americans pay for political campaigns.

Specifically they say that the ruling marks a breakthrough for reform advocates, because it recognizes that express advocacy can go beyond the mention of a few key words in political ads. Such words and phrases as "vote for" and "vote against" are called "magic words" by some who study campaign-finance reform issues.

The writers note that, in addition to the actual content of an ad, the judge "recognizes that the timing of an ad is relevant to the question of whether it should be regarded as express advocacy."

They cite as examples the judge's finding that the Christian Coalition used election money illegally by including phrases such as "to help you prepare for your trip to the voting booth" and "a Christian Coalition 100 percenter" in a scorecard for Newt Gingrich in the days before the 1994 November election.

But reform opponents say such claims are disingenuous because few would make the case that only ads with the phrases "vote for" or "vote against" constitute express advocacy.

"The phrase 'magic words' is fiction created by Common Cause to denigrate the Supreme Court," Bopp told free! "No one who's in favor of the First Amendment is arguing that only 'magic words' constitute express advocacy. That's a straw man created by them to distort our position.

"They trumpet the fact that she rejected 'magic words,'" he added. "But I reject 'magic words.' That's a phony victory on their part."

The reform advocates say the judge also cleared the way for Congress to devise a clearer definition of coordination — that is, when and how corporations and organizations are permitted to work together on voter guides and campaigns.

Congress, as it debates the Shays-Meehan bill in the House and the McCain-Feingold bill in the Senate, can craft that definition, they say. The two identical bills, if passed, would ban so-called "soft money," the mostly unregulated donations that political parties use to bolster campaigns of individual candidates.

But Bopp said Green relied on a narrow definition of coordination in her decision "because that is what is required by the Constitution. Her decision further demonstrates that Shays-Meehan and McCain-Feingold are unconstitutional."

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