Eyes Wide Shut

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, then-executive 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 in-kind 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.

The court went on to say that only those forms of "independent expenditures" that engage in "express advocacy" can be regulated by the FEC. "Express advocacy" is defined as words that "advocate the election or defeat of a clearly identified candidate for federal office." In a footnote, the high court even listed the types of verbs and phrases that would raise red flags, among them "vote for," "elect," "support," "cast your ballot for," "vote against," "defeat" and "reject."

In plain English, interest groups are free to spend money and resources attempting to influence the outcome of political campaigns as long as they do not directly urge anyone to vote for or against a candidate.

Green concluded that, in light of the Buckley ruling, the Christian Coalition's voter guides were not examples of "express advocacy" since they did not contain "an explicit directive" telling people to vote for or against certain candidates. (She even brushed aside the fact that the National Republican Senatorial Committee made a $64,000 donation to the Christian Coalition to pay for voter guides.)

"While some have complained that 'express advocacy' cannot be so limited as to be easily avoided by linguistic sleight-of-hand," observed Green, "this Court must conclude that that is precisely how the Supreme Court has narrowed the Act. In Buckley, the Court held that, as written, the Federal Election Commission Act had too much bite. The Court recognized that the result of its narrowing construction rendered the FECA's limitations on independent expenditures largely toothless."

Thanks to the Buckley ruling, federal election law is weak, and Christian Coalition officials know it. Responding to Judge Green's ruling, Americans United Executive Director Barry W. Lynn called it "disappointing but not surprising."

"The courts have been lax in enforcing federal election law," said Lynn. "Pat Robertson and his Christian Coalition have slipped through a legal loophole."

But Lynn noted that Green's decision is still useful, because it proves beyond a doubt that the Christian Coalition, which was founded by Robertson in 1989, has been working in conjunction with Republican campaigns from the day it was founded. The record indicates that Coalition leaders were clearly not being truthful when they insisted, as they frequently did over the years, that the organization is non-partisan.

Much of the information about the Coalition's partisan activity apparently came to light during the fact-finding phase of the FEC's case. Green noted that the FEC engaged in extensive discovery and pointed out that the Coalition resisted these efforts. At one point, the group was hit with sanctions by a federal magistrate over its reluctance to comply.

(The Coalition also angered Judge Green by filing briefs that exceeded the court's imposed page limits, even single-spacing some paragraphs to squeeze in more arguments. Wrote Green in a footnote, "[T]he Court finds such conduct to be reprehensible, and it shall not be tolerated in the future.")

Much of the information uncovered during discovery explains how the Coalition sought to help re-elect Bush in 1992. Noted Green, "Throughout the presidential campaign, Reed and Robertson had frequent contact with Bush campaign officials....Throughout the campaign, Reed provided Bush-Quayle '92 with strategic and other campaign-related advice."

In June 1992, Robertson polled viewers of his "700 Club" and was apparently dismayed to learn that only 57 percent said they planned to vote for Bush. (40 percent backed Ross Perot and 3 percent Bill Clinton.) Reed sent a memo, on Coalition letterhead, to Bush campaign chairman Robert Teeter, writing, "Exit polls in 1988 showed Bush pulling 81% from these same voters. If he only gets 50-60%, he is gone. We are ready and willing to help shore up this base. Now that we are past the primary season we need to come up with a strategy to rebuild bridges among these voters for the general. Hope to talk to you soon about what can be done -- the sooner the better."

Robertson and Reed also lobbied Bush campaign officials to appoint Coalition activists as campaign co-chairs in several states. The decision notes that this effort was successful, and several of the suggested individuals were appointed.

In July 1992, senior officials with the Bush campaign traveled to Virginia Beach to meet with Robertson and Reed. Distribution of voter guides was discussed, among other issues. A few weeks later, Bush taped an interview with Robertson for use on the "700 Club." Prior to the interview, Reed sent Bush officials a list of questions Robertson was likely to ask along with Reed's recommendations for Bush's answers.

Bush was grateful for the assistance. In a deposition in the FEC case, he explained why he sought Robertson's endorsement. "[Robertson] had this huge circulation in the media," said Bush, "and he, I believe, was the head of the Christian Coalition, which gave me support at various times."

Green's decision also contains an account of the Christian Coalition's involvement in Sen. Jesse Helms' 1990 campaign. Reed had access to Helms' polling data and knew that he was locked in a tight race with former Charlotte Mayor Harvey Gantt. The Coalition organized a last-minute voter guide blitz, which Reed later claimed propelled Helms to victory, 53 percent to 47 percent.

In addition, the decision highlights Christian Coalition participation in Republican House races, including the 1994 race by J.D. Hayworth in Arizona and Bob Inglis' 1992 race in South Carolina.

While Judge Green ruled that the Coalition's activities in those races did not violate federal election law, her decision was not a total victory for the group. She ruled for the FEC in two cases -- finding that the Georgia affiliate of the Christian Coalition had improperly endorsed former House Speaker Newt Gingrich in 1994 and that the Coalition violated election law by providing a mailing list to Senate candidate Oliver North in 1994.

North challenged incumbent Sen. Chuck Robb of Virginia, and, since the race was in the Coalition's back yard, Robertson and Reed took special interest. Judge Green noted that "Pat Robertson and Ralph Reed, as well as other Coalition staff had close ties to the North campaign."

Robertson had attended a meeting in Williamsburg, Va., in December of 1992 to discuss North's Senate bid, and Reed later joined a North advisory board. In addition, David Hummel, a member of the Virginia Christian Coalition's Board of Directors, served as chair of the North campaign in Virginia Beach and Robertson's daughter-in-law was regional field director for North's campaign there.

In the spring of 1993, North's opponent in the primary, James Miller, met with Reed to discuss his race for the Senate seat. He was informed that the Coalition planned to support North. (All of this occurred at a time when Reed and other CC leaders were insisting in the media that the organization did not support candidates.)

The list the Christian Coalition gave to North's campaign was composed primarily of delegates who had attended the Virginia Republican Party convention in 1993 and who had supported ultraconservative lieutenant governor candidate Mike Farris. Reed instructed Joel Vaughan, a Coalition staff member, to give the list to a volunteer with the North campaign. Vaughan ended up passing the list to Joe Elton, a paid North consultant. Vaughan was worried about the legality of the move, but Reed later assured him that sharing the list with a consultant was not the same as giving it to the campaign directly. Judge Green disagreed.

However, the Christian Coalition was quick to seize on Green's overall ruling, insisting that the court had given its blessing to the distribution of Coalition voter guides in churches.

Robertson told The New York Times, "I'm back in charge. We have a new sheriff in Dodge, and it's a brand new game. The coalition, based on this ruling, becomes extremely significant in the year 2000 race."

The day of the decision, the Coalition issued a press release headlined, "Christian Coalition Wins FEC Case. Court Says Group's Voter Guides Are Not Partisan." The claim is especially audacious because the judge's decision says the exact opposite. In the ruling, Green noted that the Coalition guides clearly favor some candidates over others. She simply did not find this to be "express advocacy" under the current, narrow interpretation of federal election law.

Nevertheless, the Coalition is already telling churches that its guides have been approved by a federal court and are appropriate for in-church distribution. According to Americans United's Lynn, this is a reckless and dangerous distortion of the facts.

Lynn insisted that federal election law is a lot looser than federal tax law. Under the Internal Revenue Service Code, non-profit groups, including houses of worship, may not intervene in partisan campaigns directly or indirectly, nor may they distribute biased campaign literature. By pointing out that the Coalition's guides favor some candidates over others, Green has underscored their partisan nature.

The Christian Coalition, Lynn observed, was denied tax-exempt status by the IRS three months ago. That action is not in any way affected by the failure of the FEC case. In fact, evidence of the group's partisan nature continues to mount, with Green's decision being merely the latest addition to the pile.

Lynn said Americans United has asked experts in federal tax law at the Washington, D.C., firm of Caplin and Drysdale to prepare a legal memorandum for religious leaders advising them not to buy into the Christian Coalition's campaign of distortion. AU plans to distribute the memo to churches nationwide. (It is also available on Americans United's website: www.au.org.)

"Federal tax law is much stricter than federal election law," Lynn said. "Churches that join the Coalition's partisan political machine still risk losing their tax-exempt status."

In the meantime, Green's decision has renewed the call for campaign finance reform. The New York Times asserted, "The ruling makes it all the more urgent for Congress to enact a new set of reforms that curb the corrupting power of money in elections while respecting the First Amendment. Indeed, Judge Green almost seemed to be inviting Congress to act."

Concluded The Times, "Money from special interests corrupts the process whether contributed directly to a candidate, a political party or a group, such as the Christian Coalition, that operates independently in name only. The danger in Judge Green's decision is that it could encourage campaigns to use other groups to raise and spend money on their behalf. The decision should not be an excuse to give up on campaign reform. It can actually strengthen the drive to pass such reforms right away."

The Washington Post agreed. The newspaper called on the FEC to appeal Green's decision but added that Congress must act as well. "The failure of Congress to address such questions as the definitions of coordination puts a heavy burden on the judiciary to legislate in its place," observed The Post. "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."

In the meantime, AU's Lynn urged churches not to believe Christian Coalition claims that it has been absolved of wrong-doing. "The record in this case proves beyond a doubt that the Christian Coalition is what I have said it is all along -- a hardball partisan operation devoted to helping elect Religious Right-style Republicans to public office. That is a goal no church in American can legally help further."