Eyes wide shut

Church & State, Sep 1999 by Boston, Rob

Federal Judge Finds Pattern Of Christian Coalition Politicking For Republican Candidates, But Lets Robertson Group Slip Through Legal

Loopholes In FEC Case

As 1990 drew to a close, TV preacher and Christian Coalition President Pat Robertson trekked to the White House for the first of what would turn out to be several meetings with President George Bush and his top advisors.

Although the next presidential election was nearly two years off, Robertson wanted to lay the groundwork early to help Bush win the support of conservative evangelical voters. During an Oval Office meeting with Bush, Chief of Staff John Sununu and Leigh Ann Metzger, Bush's liaison to religious organizations, Robertson pledged to support Bush's reelection campaign and offered to help in any way he could.

That same day, Ralph Reed, thenexecutive director of the Coalition, penned a personal note to Metzger, writing, "Pat said the meeting with the President today went very well. We are looking forward to helping in any way we can."

As the election drew near, Robertson and Reed were in frequent contact with Bush, his top advisers and officials at the Bush campaign. In February 1992 Robertson had another private meeting with the president. Robertson also issued a letter personally endorsing Bush. Later that summer, he taped an interview with Bush for use on the "700 Club."

Reed was also busy working hand in glove with the Bush reelection effort. The CC executive director called Bush campaign officials frequently to advise them of the Coalition's efforts to issue millions of voter guides in advance of the election and to offer advice.

All of this activity could lead a reasonable observer to conclude that Robertson and Reed wanted to see Bush re-elected and were using the Christian Coalition to achieve that goal. It appeared to be a clear-cut case of an outside group working in close coordination with a political campaign.

To officials with the Federal Election Commission (FEC), it also looked like an obvious violation of federal election law. In 1996 the FEC sued the Coalition, accusing the group of working in close conjunction with GOP campaigns and not reporting its activities as federal election law requires.

But in a decision handed down Aug. 2, U.S. District Judge Joyce Hens Green ruled that most of the Coalition's activities did not run afoul of the campaign statute. Green dismissed seven FEC charges against the Coalition and upheld only two.

Reading federal election law very narrowly, Green ruled that the Coalition's voter guides and congressional scorecards, even though they clearly favored some candidates, did not violate federal election law because their content did not amount to "express advocacy" of those candidates. In other words, because the guides did not explicitly say "Vote for Smith" or "Vote against Jones," they passed election-law muster.

"Although these materials made clear which candidates the Coalition preferred, the FEC acknowledges that most of the voter guides did not expressly advocate the election or defeat of any particular candidate," Green wrote in the Federal Election Commission v. The Christian Coalition ruling.

The judge also rejected the FEC's theory "that the Coalition's extensive consultations with the campaign staff of certain candidates regarding the distribution of its voter guides and other materials turned otherwise permissible campaign-related materials into illegal inkind campaign contributions."

Green's 116-page decision is not easy for the layman to read or analyze as it navigates the tricky waters of complex federal election law. What is especially exasperating is that it is clear from the ruling that the Christian Coalition worked closely with several GOP campaigns in 1990, 1992 and 1994, yet Green ruled that the group was not in violation of federal election law. How can this be?

The problem stems from current Supreme Court precedent, which Green interpreted exceedingly narrowly. In Green's view, the high court, in Buckley v. Valeo, a landmark ruling handed down in 1976, more or less gutted the Federal Election Campaign Act and severely limited the FEC's ability to crack down on the type of activity engaged in by the Coalition and other organizations.

The Campaign Act, passed by Congress in 1971, was a response to various electioneering violations first uncovered during the years of the Nixon Administration. The Federal Election Commission, created in 1974, is a bipartisan body charged with regulating the federal electoral process and enforcing the Act. However, the FEC has always had more bark than bite, due largely to the Buckley decision, which dramatically reshaped the agency and its powers.

In Buckley, the Supreme Court ruled that restrictions on campaign contributions and expenditures are essentially the same as restrictions on free speech. The high court ruled that some restrictions on direct campaign contributions could be tolerated in the interest of combatting political corruption, but that broad restrictions on "independent expenditures" that help candidates are unconstitutional.