THE DECISION by U.S. District Judge Joyce Hens Green that the Christian Coalition's voter guides did not run afoul of the federal election law represents a further erosion of the premises of the campaign finance laws. While aspects of the decision are a useful affirmation of the law, its core is faulty and ought to be reversed. The mere fact that it could be issued highlights once again -- as if another illustration were necessary -- the need for Congress to strengthen the statutes, which have been left in an increasingly tattered state.
The Federal Election Commission has long contended that while an organization is entitled to make election-related expenditures that do not expressly advocate the election or defeat of a particular candidate, this spending must be truly independent of that candidate's campaign committee. If the spending is coordinated with a campaign, the commission regards the expenditure as an in-kind contribution to the candidate. In the case of the Christian Coalition, such coordinated spending would violate the ban on corporate contributions to campaigns. Judge Green's decision rightly validates this premise, rejecting the argument by the coalition and other interest groups that only express advocacy is covered by the coordination rule.
The trouble is that Judge Green then guts the rule by adopting a highly permissive definition of "coordination." We would have imagined, for example, that the following characterization by Judge Green of the relationship between Coalition leaders Ralph Reed and Pat Robertson and George Bush's 1992 campaign would qualify as coordination by anyone's definition: "Reed frequently offered the campaign advice, much of which was either followed or implemented independently. Additionally, Reed and Robertson repeatedly reminded the campaign about the Coalition's plans to distribute voter guides and make . . . calls. And President Bush attended a Coalition fundraising event, perhaps with the understanding that funds raised would go to cover voter guide costs." President Bush did an interview with Mr. Robertson that was both for use in these voters' guides and for broadcast on television, and the coalition provided the questions in advance and even suggested answers for the president. Yet Judge Green concludes that this is not coordination.
If this is right, there is little left of the prohibition against corporate contributions. As we learned in 1996, a candidate can legally circumvent spending limits by having his political party spend money for him (as long as the party avoids express advocacy). Now Judge Green is saying in effect that even non-party groups, with the knowledge and limited cooperation of the campaigns, can help.
The FEC should appeal this decision. But the law also desperately needs to be strengthened. The failure of Congress to address such questions as the definition of coordination puts a heavy burden on the judiciary to legislate in its place. The result is, too often, decisions such as this one, which carry enormous policy implications, made by a kind of guesswork by the wrong branch of government.