Attorney seeks end to FEC voter-guide rules

Friday, September 10, 1999

James Bopp Jr....
James Bopp Jr.

An attorney who has won many campaign-finance cases, including several for state chapters of the National Right to Life Committee, recently filed a petition with the Federal Election Commission asking the agency to repeal its rules on voter guides and voter records.

James Bopp Jr., general counsel for the James Madison Center for Free Speech, contends that the FEC has allowed such rules to linger, despite a federal appeals court ruling last year striking them down.

Bopp filed the petition in July on behalf of the Iowa Right to Life Committee.

“Iowa Right to Life Committee remains confused and, consequently, chilled by the presence of this regulation and its amorphous application,” Bopp wrote in his petition. “If the FEC is unwilling to defend the standard in court … the only responsible course is for the commission to repeal it.”

The FEC has accepted the petition and has asked for public comments. Such statements must be filed by Sept. 24.

Bopp's petition stems from a series of decisions by the 1st U.S. Circuit Court of Appeals concerning FEC rules regulating voter guides.

Early FEC rules required voter guides to be nonpartisan. But the 1st Circuit struck down the regulations in the 1991 case Pauncer v. FEC, determining that the restrictions infringed upon the free-speech rights of groups which advocated certain issues but didn't expressly endorse candidates.

In 1996, the FEC drafted new rules, placing restrictions on advocacy that contains “electioneering messages.”

The Maine Right to Life Committee challenged the rules, contending that such restrictions unfairly imposed on its members' free speech.

Bopp represented the group in court.

“The problem with more subjective standards like election-message tests is that the speaker doesn't know until some federal bureaucrat ex post facto decides that he or she has said something that triggers a prohibition or a report under federal election law,” Bopp said.

In October 1996, the 1st Circuit in Maine Right to Life Committee v. FEC struck down most of the new FEC rules. The court remanded the “electioneering message” provisions of the regulation to the FEC for clarification.

FEC officials declined to defend the provisions, saying they couldn't be severed from the original regulation. In April 1998, the 1st Circuit declared the “electioneering message” rule invalid.

But Bopp contends that FEC officials have failed to change the regulations to conform to the court's ruling. Until the agency changes the rules, publishers of voter guides and voter records must follow two different sets of regulations: one for the 1st Circuit and another for the rest of the nation.

Ron Harris, an FEC press officer, said that the agency usually doesn't comment on petitions for rulemaking.

Don Simon, executive vice president of the pro-campaign-reform group Common Cause, says Bopp has tried before to seek changes in FEC rules based on a single court case.

“The commission, I think, has properly recognized that if one court — even an appellete court — invalidates a rule, it doesn't invalidate the rule for the whole country,” Simon said. “Until the Supreme Court definitively resolves any conflict between the circuits, the FCC is free to keep enforcing a rule that it thinks is valid.”