A More Sensible Approach to Regulating Independent Expenditures: Defending the Constitutionality of the FED’s New Express Advocacy Standard
Campaign finance reformers argue that the “unholy alliance of private money and public elections” has created “a crisis of confidence in our elected officials.” The now-deceased campaign reform advocate Philip M. Stem summed up the role of money in campaigns this way: “[M]oney-power has replaced people-power as the driving force in American politics and the determinant of electoral victory.” One form of “money-power” in elections that received a great deal of attention in the last election cycle was “independent expenditures.” Independent expenditures are funds spent by interested individuals or groups – usually in the form of television or radio advertisements or mass mailings – to support or defeat a particular candidate, but are not coordinated in any way with the candidate or her campaign organization. The Federal Election Campaign A ct (“FECA” or “the Act”) requires individuals or groups making such expenditures to register with the Federal Election Committee (“FEC”), periodically to disclose in their reports to the FEC the expenditures they have made, and to identify themselves on the communication as the source of the electoral advocacy. The Act also prohibits corporations from making independent expenditures from their general treasury accounts. Failure to comply with the FECA’s requirements for independent expenditures may result in civil or criminal prosecution, including fines or imprisonment. During the 1996 election season; labor, environmental, and rightwing organizations combined to spend well over forty-six million dollars on “educating” voters about various issues. A major question confrontiilg courts now is whether these “educational” spots are actually independent expenditures that trigger the FECA’s reporting and disclosure requirements, or whether they purely advocate a particular position on an issue that, under the First Amendment, cannot be regulated.