FEC to study 'issue-oriented' campaign ads Interest groups' 'guides' may be electioneering

September 29, 1996|By NEW YORK TIMES NEWS SERVICE

WASHINGTON -- In a test of free speech against questionable campaign practices, the Federal Election Commission will examine whether some "issue-oriented" political advertisements that promote the views of private interest groups violate federal laws.

The advertisements, which appear on television and in the form of "voter guides," are advocacy statements from interest groups -- the Christian Coalition, for instance, or labor unions -- that often indicate a preference for particular candidates without explicitly urging people to vote for them.

While courts have generally ruled that these advertisements are protected by free-speech guarantees, the commission is concerned that the increasingly popular practice has crossed the line into electioneering, which is regulated by law.

In addressing the subject, the commission is taking on an issue that strikes at the core of the nation's campaign finance laws: how far the government should go in regulating political behavior.

The commission will also be testing the limits of its own authority. Often criticized as a weak regulator, the agency is tackling the question at a time when it is beset by partisan differences from within and is seeing its budget slashed by a hostile Congress. As a result, it remains unclear just how far the commission can go with the new effort.

"We will be evaluating all this activity," said Scott E. Thomas, a Democratic commission member. "There is a good chance some of this activity will be viewed by us as having crossed the line. There's a lot of it, and I am confident some folks are going beyond pushing the edges of the envelope. They have ripped out the corners of the envelope and gone beyond."

Already, the commission has brought suit against the Christian Coalition, a conservative religious group that is sending out an estimated 45 million voter guides, for having spent millions of dollars on behalf of Republican candidates from 1990 to 1994 without following federal laws that limit and regulate campaign spending.

Thomas indicated that other cases were also under investigation, but he said they would probably not surface until after the November election.

"In initiating these high-profile, major cases, like the Christian Coalition case, the FEC is raising some high-profile, major constitutional issues," said Robert Bauer, an election law specialist at Perkins Coie, a law firm.

Even supporters of tighter controls admit that the commission's reach has been limited by the courts. In the past few years, some of the commission's more prominent enforcement cases have been overturned by federal courts, which have used the First Amendment to narrowly circumscribe the commission's power.

"There's a big difference of opinion about the commission," said Jan Baran, head of the election law group at Wiley, Rein & Fielding.

"The popular view of campaign finance reformers believes government ought to regulate more and be more aggressive in (( limiting how money can be used in politics. The conservative view is that restrictions are dangerous and impede political activity.

"But experience shows that whenever the commission does get aggressive, and the courts review their aggressiveness, they are routinely found to be violating the First Amendment."

Issue-oriented advertisements are becoming a powerful force in the current election cycle -- one in which an estimated $2.5 billion is expected to be spent for the presidential and congressional races.

If they are found to be engaging in a federally regulated activity, interest groups would be subject to federal laws that require the disclosure of donors' names and limit the amounts spent by corporations and individuals on such advertisements and voter guides.

"These ads have become a license to cheat in 1996," said Fred Wertheimer, former president of Common Cause, a watchdog group. "Labor. Business. Environmental groups. They are all playing games with the law. They are conducting campaigns for the election or defeat of candidates. Yet they all say that these are just 'issue' ads and not subject to regulation. They are playing off the courts' failure to recognize the reality of modern communication."

For instance, in the Christian Coalition case, the commission cited voter "score cards" that purport to give "American Christian voters the facts they will need to distinguish between GOOD and MISGUIDED Congressmen" and then rate members of Congress from 100 percent to zero.

In the 1994 Georgia primary, Rep. Newt Gingrich, now the House speaker, was termed "a Christian Coalition Inc. 100 percenter," and voters were urged to take the score card with them into the voting booth.

Within the commission, differences of opinion exist over the status of these advertisements, but not over their importance. Lee Ann Elliott, the Republican chairwoman of the panel, said that "this is a big issue that will keep coming back in cases besides the Christian Coalition."

"There's litigation going on, and there will be more," she said.

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