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Advocacy Blog
Thursday, November 16, 2006
FEC Fines Sierra Club $28,000 For "Express Advocacy" in Voter Guide
The Federal Election Commission (FEC) charged that in 2004 the nonprofit environmental group Sierra Club, a 501(c)(4), used funds from its corporate treasury to pay for a pamphlet "expressly advocating" the defeat of federal candidates. A specific guide was considered titled, "Let Your Conscience Be Your Guide," that used check marks to compare the environmental records of Bush and Kerry and the U.S. Senate candidates. It was found that the pamphlet “expressly advocated” Kerry and Castor’s election and Bush and Martinez’s defeat. This is the first major case to consider the express advocacy test after the Supreme Court case McConnell v. FEC.
As it says in the FEC press release, "the bar on using corporate treasury funds to pay for independent expenditures applies not only to communications containing so-called 'magic words,' such as 'vote for' or 'vote against,' but also to a broader set of communications that are 'unmistakable, unambiguous, and suggestive of only one meaning,' and can 'only be interpreted by a reasonable person as containing advocacy of the defeat of one or more candidates."
However, if the FEC sees express advocacy in this case, the numerous voter guides issued by issue oriented organizations during this past election may also be scrutinized as most do look at the candidates from their issue of concern, making them "unambiguous and suggestive of only one meaning." Now there seems to be very little guidance left for future elections, and further confusion between IRS and FEC rules. This case with the Sierra Club shows the likelihood of increased regulation of federal election activity.
As suggested in Congressional Quarterly (subscription required), will this be the end of voter guides? The author suggests that churches might be the most affected. As Bob Bauer comments at the end of his blog on the topic; "Thus is born the new semiotics of campaign finance regulation. Such is what it means for advocacy to be “express." Also see this blog post on the issue from the Center for Competitive Politics.
Posted by Amanda Adams
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