Campaign Speech and Contextual Analysis
43 Pages Posted: 29 Nov 2007
Recent developments - such as a wave of FEC enforcement actions, the FEC's publication of its case by case approach to determining political committee status, and the Supreme Court's decision in FEC v. Wisconsin Right to Life - have made it necessary to reconsider the kinds of campaign finance reforms desirable and constitutionally permissible. This Article examines the proposition that, if section 527 groups and groups exempt under section 501 of the Internal Revenue Code are part of a network of commonly managed organizations, then the FEC should decide whether they need to register as political committees under the Federal Election Campaign Act (FECA) by looking at their relationships with other members of the network in addition to evaluating the character of these groups viewed in isolation.
In 2006 the Campaign Finance Institute issued a report looking twelve nationally important nonprofits that had been active in the 2004 election. It found that in ten of the twelve cases, a section 527 group that had not registered with the FEC had an affiliated group that was expressly involved in promoting the candidacy of one or more individuals who were running for a federal office. Sometimes the affiliated group was a PAC registered with the FEC and sometimes it was a 501(c) organization engaged in political campaign activity. Based largely upon the study's findings, I develop my recommendation for a network approach to determining political committee status.
I then examine two potential First Amendment barriers to implementing the approach I recommend. According to the first, which is based upon a line of cases starting with Regan v. Taxation with Representation of Washington, the government cannot condition tax and other financial benefit for a potential recipient on its surrendering free speech rights that it otherwise would have unless there is an alternate channel available for the recipient to exercise those rights. The second depends upon the reasoning of the Supreme Court in, which limits the ability of the FEC to examine the context surrounding campaign messages in deciding whether electioneering communications have occurred. I argue that both of these constitutional obstacles can be overcome and, thus, that a network approach to political committee status is desirable from a public policy point of view and constitutionally valid.
Keywords: nonprofits, exempt organizations, associations, constitutional law, First Amendment, Regan v. Taxation with Representation of Washington, FEC v. Wisconsin Right to Life, FEC, and FECA
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