Is The Gig Up On Eric Miller's "Nonpartisan" Voter Guides?

A decision announced yesterday by the Federal Election Commission (FEC) against voter guides put out by the nonpartisan, nonprofit Sierra Club during the 2004 elections may cast serious doubt on the legality of similar voting guides put out by Eric Miller's Advance America organization, which also claims to be a nonpartisan, nonprofit organization. The FEC fined the Sierra Club $28,000 for distributing voter guides the FEC claims "expressly advocating the election and defeat of candidates." In a press release, the FEC said:

“This is one of the most important express advocacy cases the Commission has resolved in recent years,” said Commission Chairman Michael Toner. “I am very pleased that the Commission was able to conciliate this case and provide further guidance to the public on the appropriate scope of the express advocacy test,” added Toner.

The settlement follows a Commission determination that 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.” This settlement with the Sierra Club, a 501(c)(4) organization, represents the first major case to consider the reach of the express advocacy test in light of the landmark Supreme Court case, McConnell v. FEC.

At issue was a pamphlet distributed by the Sierra Club in Florida prior to the 2004 general election. The front of the pamphlet exhorted the reader to “LET YOUR CONSCIENCE BE YOUR GUIDE,” accompanied by various nature scenes. The heading of the interior of the pamphlet urged the reader, “AND LET YOUR VOTE BE YOUR VOICE.”

The pamphlet compared the environmental records of President Bush and Senator Kerry and U.S. Senate candidates Mel Martinez and Betty Castor through checkmarks and written narratives. Kerry received checkmarks in every box on all three environmental issues addressed in the pamphlet; Bush received only one checkmark in a single category, and in that category, Kerry received two checkmarks. In the Senate race, Castor received checkmarks in all three categories, while Martinez received none. The accompanying narratives made clear that a checkmark represented a favorable environmental record in the eyes of the Sierra Club. The Commission found that the pamphlet “expressly advocated” Kerry and Castor’s election and Bush and Martinez’s defeat.

Prior to the Supreme Court’s decision in McConnell v. FEC, which upheld most of the Bipartisan Campaign Reform Act of 2002, two Federal appeals courts had held that, as a constitutional matter, only communications containing the so-called “magic words” could be subject to Federal campaign finance law.

In McConnell, however, the Supreme Court made clear that “express advocacy” was not a constitutional boundary “that forever fixed the permissible scope of provisions regulating campaign-related speech.”

Because the Sierra Club brochure contained “express advocacy,” it was an independent expenditure.” Federal law prohibits corporations from using treasury funds to make independent expenditures and all of the funds spent on the brochure by the Sierra Club came from its corporate treasury.

The Sierra Club, while accepting the settlement with the FEC, put out a blistering press release accusing the FEC of using a "fuzzy definition" of the law, which it deemed unconstitutional for vagueness, in reaching its decision that its voter guides crossed the line of what is permitted. The group said:

The FEC based its finding on a fuzzy definition that most courts have found unconstitutionally vague. Although the FEC attempts to dance around the issue, the Supreme Court’s McConnell decision did not give theCommission the authority to use this smell test. The only clear signal is that the FEC has turned formerly clear terraininto a foggy bog that advocacy groups approach at their own risk. Ironically, the Commission’s regulations specifically say organizations mayproduce voter guides, but now the FEC is telling groups that if they crosssome unknown line, they’ll face fines. The FEC’s action surely will frighten some groups into silence, squelching efforts to educate voters onimportant issues.

Like the Sierra Club, Advance America distributes over 850,000 voter guides to voters, primarily through churches, U.S. mail and e-mail communications each election. As with the Sierra Club's voter guides, Advance America's voter guides do not contain the magical words instructing a voter to vote for or against a particular candidate. It does, however, place a checkmark next to the name of each candidate for each issue on which the candidate agrees with Advance America's position. The group selected 10 issues to rate the candidates. Those issues in this past election were as follows:

• Supports constitutional amendment to repeal property taxes
• Supports constitutional freedom for churches and their ministries
• Opposes expansion of gaming
• Opposes same-sex marriages and civil unions by amending the Indiana and U.S. Constitutions
• Supports pro-life position
• Supports freedom for private and home schools
• Supports educational tax credits for public, private and home schools
• Opposes new government regulation of businesses
• Opposes pornography on library computers

Advance America sent the questionnaires to all candidates to complete prior to the election. The voter guides contained this disclaimer: "The responses listed are based upon completed candidate questionnaires and the responses of the candidates to repealing property taxes with a constitutional amendment. A blank space indicates the candidate's response was either not clearly yes or was no, or that the candidate did not respond, or that the candidate had no opinion." In other words, if a candidate completed the questionnaire by indicating unequivocal support for any of the 10 issues, the candidate received a checkmark for each affirmative response. Any other response yielded a blank space. The voting guides totalled the number of checkmarks for each candidate. A candidate who responded affirmatively to each issue would score a "10" next to his/her name, while a candidate who responded negatively to each issue or didn't respond at all, received a "0" next to his/her name.

While the voter guides themselves do not contain any exhortation like "Let Your Conscience Be Your Guide" as the Sierra Club voting guides did, communications through its website and e-mails to voters as part of the group's efforts to get the word out about the voter guides did contain similar exhortations. The group encouraged voters to "Cast An Informed Ballot" explaining that this was "an important election for families and churches." Miller himself is featured in a video recording explaining how important it was for voters to get a voter guide distributed by the group to let them know where the candidates stood on "important issues" such as same-sex marriage and abortion. He tells voters to do three things: (1) pray; (2) vote; and (3) cast an informed ballot.

There can be no mistaking the fact that the checkmarks next to a candidate's name and the accompanying score represent a favorable "pro family", "pro life" and "pro business" record for the candidate, in the context of how each question is phrased and the accompanying communications Advance America used to distribute its voters guides. Applying the standard used by the FEC in the Sierra Club decision, a reasonable person could only interpret Advance America's communications with respect to the voter guides as containing advocacy for the support or defeat of a candidate. The FEC should similarly investigate Advance America and mete out a civil penalty similar to what it meted out to Sierra Club. The time has long since come and gone for the federal government to put an end to the blatant political activities of these so-called nonpartisan, nonprofit organizations in violation of federal law.