In the Matter of                                                          )

                                                                                    )

The Clinton/Gore ’96 Primary Committee, Inc.,      )

and Joan Pollitt, as treasurer;  The Democratic       )            MUR  4713

National Committee, and Carol Pensky, as )

treasurer;  President William J. Clinton;  and          )

Harold M. Ickes                                                         )                       

The Clinton/Gore ’96 Primary Committee, Inc.,      )

and Joan Pollitt, as treasurer;  The Democratic       )

National Committee, and Carol Pensky, as )

treasurer;  President William J. Clinton;  Vice        )           MURs 4407 and 4544

President Albert Gore, Jr.; and Clinton/Gore          )

’96 General Committee, Inc., and Joan Pollitt,        )

as treasurer                                                                 )                       

Dole for President, Inc., and Robert J. Dole,           )

as treasurer; Dole/Kemp ’96, Inc., and                     )

Robert J. Dole, as treasurer;  Republican                )           MURs 4553 and 4671

National Committee and Alec Pointevint, as             )

treasurer;  Senator Robert J. Dole                            )

STATEMENT OF REASONS

COMMISSIONER LEE ANN ELLIOTT

            I am writing to state my reasons for voting not to approve the recommendations of the General Counsel that the Commission find reason to believe that various of the above captioned entities violated 2 U.S.C. § 441a(a)(2)(A) for making excessive contributions;^[1] 2 U.S.C. § 441b(a) and 11 C.F.R. § 102.5(b) for improperly using prohibited contributions;^[2] 2 U.S.C. § 434(b)(4) for improper reporting;^[3] 2 U.S.C. § 441a(f) for knowingly accepting excessive contributions;^[4] 2 U.S.C. §441b(a) for knowingly accepting prohibited contributions;^[5] 2 U.S.C. §§ 441a(b)(1)(A) and 441a(f), and 26 U.S.C. §9035(a) for exceeding the overall expenditure limitation;^[6] and 2 U.S.C. §§ 434(b)(2)(C) and 434(b)(4), and 11 C.F.R. §§ 104.13(a)(1) and 104.13(a)(2) for improper reporting.^[7]  All of the potential violations listed stem from the core question of whether the advertisements at issue run by the DNC and RNC constituted in-kind contributions from the national party committees to the presidential committees. 

As was explained by the Supreme Court in Buckley v. Valeo, 424 U.S. 1 (1976),  because “contribution and expenditure limitations operate in an area of the most fundamental First Amendment activities,” id. at 14, “express advocacy,” consisting of speech expressly advocating the election or defeat of a clearly identified federal candidate, must be separated from other political speech, usually referred to as “issue speech” or “issue advocacy.”  See id. at 42.   Because neither the Complainants,^[8] nor the General Counsel,^[9] alleged that any of the advertisements in question expressly advocated the election or defeat of a candidate for federal office, my decision was not difficult or complicated.  My inquiry began - and in these matters ended - with the question of whether the advertisements contained express advocacy.  They clearly did not.

I.

At least one Commissioner has confused the issue involved in these MURs by asserting that the Commission must first determine “whether the national party committees ‘coordinated’ the advertisements with the presidential committees,” prior to reaching the question of whether the advertisements were made for the purpose of influencing an election (and therefore must contain express advocacy).  Statement of Reasons of Commissioner Scott E. Thomas, p. 6 (May 25, 2000).  That approach ignores the explicit language of the Commission’s governing statute.  § 441a(7)(B)(i) of the Federal Election Campaign Act states that:

[E]xpenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents, shall be considered to be a contribution to such candidate;   

2 U.S.C. § 441a(7)(B)(i) (emphasis added).  The operative term of that section is the subject and first word, “expenditure,” and the term “expenditure,” as unambiguously defined by the courts, is limited to express advocacy.  Recently, in FEC v. Christian Action Network, Inc., 110 F.3d 1049 (4^th Cir. 1997), the Fourth Circuit explained that:

[I]t is indisputable that the Supreme Court limited the FEC’s regulatory authority to expenditures which, through explicit words, advocate the election or defeat of a specifically identified candidate.

110 F.3d at 1062.  In FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238, 249 (1986), the Supreme Court emphasized that the prohibition on corporate expenditures in 2 U.S.C. § 441b could not reach beyond “express advocacy.”  Referring to Buckley, the Court noted:

There, in order to avoid problems of overbreadth, the Court held that the term ‘expenditure’ encompassed ‘only funds used for communications that expressly advocate the election or defeat of a clearly identified candidate.’ 

479 U.S. at 249, citing 424 U.S. at 80 (footnote omitted).  The Court continued that, “We therefore hold that an expenditure must constitute ‘express advocacy’ in order to be subject to the prohibition of § 441b.”  479 U.S. at 248-49.   The list of courts that have re-affirmed that the FEC’s regulatory authority is limited by the “express advocacy” standard announced in Buckley is extensive and exhaustive.^[10]  In fact, one of the Commission’s relatively few substantive court victories came in Orloski v. FEC, 759 F.2d 156 (D.C. Cir. 1986) where the Commission itself argued, in the context of dismissing a complaint alleging that the costs of a picnic sponsored by a corporation were an illegal in-kind contribution to the candidate, that coordinated spending constitutes an in-kind contribution to the candidate if, and only if, the speech paid for expressly advocates the election of defeat of a clearly identified federal candidate.  The D.C. Circuit agreed:

Under the Act this type of “donation” is only a “contribution” if it first qualifies as an “expenditure” and, under the FEC’s interpretation, such a donation is not an expenditure unless someone at the funded event expressly advocates the re-election of the incumbent or the defeat of an opponent or solicits or accepts money to support the incumbent’s re-election.

759 F.2d at 163.

            As outlined above, the courts have made it abundantly clear that the jurisdiction of the FEC is limited to expenditures which expressly advocate the election or defeat of a clearly identified federal candidate.  Because the advertisements at issue clearly did not expressly advocate the election or defeat of President Clinton or Senator Dole, respectively, they by definition are not expenditures under the Federal Election Campaign Act, and therefore they are not within the Commission’s jurisdiction to regulate.^[11]

II.

            My decision in the above captioned MURs began and ended with what I believe is the unambiguous law on the scope of the Commission’s regulatory jurisdiction.  It is worth noting, however, the policy implications of some of my fellow Commissioner’s contrary views.  If express advocacy were not the standard for what defined an “expenditure” under the Act, then we would be left with the bizarre situation where the President of the United States could not coordinate with his own political party on advertisements to support his (and presumably his party’s) legislative priorities, yet outside groups could spend as much as they wanted to run advertisements opposing the President’s legislative priorities.  That result would be unfair to both the President and his political party,^[12] and more importantly would be bad for the legislative debate that is so essential to our democratic process.  I am sad to say that this Commission has had an abysmal track record of attempted over-reach to regulate what the courts have consistently made clear is core First Amendment protected speech.^[13]  I am optimistic, however, that by listening to the courts,^[14] and re-focusing on our core functions and jurisdiction under the Federal Election Campaign Act, the Federal Election Commission can be a valuable part of the democratic process. 

____________________                                 _______________________

Date                                                                  Lee Ann Elliott

                                                                        Commissioner