In a decision that has dark implications for all advocacy groups that distribute information about Congressional votes to the public, last week the Federal Election Commission voted in favor of an enforcement action resulting in a $28,000 fine to the Sierra Club, to settle charges regarding a voter guide distributed in Florida in 2004 by the Club.  The voter guide purported to inform the public of the comparative environmental records of President Bush and Senator John Kerry in the Presidential race, and also the candidates for U.S. Senate in Florida.  

The voter guide predictably was slanted in favor of Kerry, but it stuck to specific Congressional legislation and the actual position of the candidates on such legislation.  It did not contain the traditional words of  "express advocacy" as defined by the historic Buckley v. Valeo case, such as "vote for," "vote against," or "support," which generally mark the difference between acceptable "issue advocacy," and regulated "express advocacy" during a campaign.  Instead, the voter guides reported on the issues, depicted natural scenes, and then included langauge such as "Let Your Conscience Be Your Guide," and "And Let Your Vote Be Your Voice."  In a conciliation agreement, the Sierra Club accepted a $28,000 fine for including these words on their voter guides, which the FEC determined to be illegal campaign intervention.

Not just since the limited issue advocacy regulation of McCain-Feingold, but for many years the campaign regulatory agencies in Washington, D.C. and Sacramento have sought to expand their reach of regulated speech beyond the "magic word" campaign statements of the Buckley case,  to also include issue-oriented communications which, according to a merky standard of  "when taken as a whole," could be interpreted as campaign speech.  See 11 Code of Federal Regulations Section 100.22(b); also see FPPC Regulation 18225(b)(2).

The FEC’s 4-2 vote on the Sierra Club matter sets a bad precedent for issue-oriented organizations that want to report legislative voting histories and important candidate positions to their memberships.  "Passion" for an issue, expressed in an electoral context even short of urging a vote for someone, is essentially now under assault by the FEC, and the failure of the Sierra Club to fight out the matter in court means this will unfortunately not be the test case of this new encroachment of government authority on the First Amendment.

This entry was posted on Monday, November 20th, 2006 at 12:00 am and is filed under Blog Posts.