A Nov. 9, 2006 enforcement decision by the Federal Election Commission (FEC) expands federal campaign finance regulation to voter guides that do not endorse or oppose candidates if the FEC determines the guide's overall content implies support or opposition to federal candidates. The case arose from a complaint filed in December 2004 by Edmund A. Hamburger of Pinellas Park, FL, which claimed "the Sierra Club was advocating the election of Senator Kerry to the Presidency of the United States." On Nov. 9, the Sierra Club chose to settle the case and pay a $28,000 civil fine rather than incur further legal expenses, but denied any wrongdoing. The case could discourage future efforts by advocacy organizations to educate voters about candidates' track records. The complaint against the Sierra Club cited four voter guides, titled "The Dirt," "Let Your Conscience Be Your Guide," "The Environment for Dummies," and "From one friend of our environment to another." The FEC dismissed the complaints against all but the "Let Your Conscience Be Your Guide" pamphlet, finding in July 2006 that there was probably cause to believe the Sierra Club made a prohibited independent expenditure by spending $69,771 to produce and distribute it. The FEC essentially held that the Sierra Club could only pay for this type of voter guide with funds raised from individuals and subjected to FEC contribution limits and reporting requirements. The Federal Campaign Finance Act (2 U.S.C. 431(17)) prohibits corporations from spending treasury funds on communications "expressly advocating the election or defeat of a clearly identified federal candidate," even when the effort is independent of candidate campaigns or political parties. This case is notable because it moves away from long-standing practice following the Supreme Court's 1976 decision in Buckley v. Valeo, which defined "express advocacy" as clear "vote for" or "vote against" statements. The FEC noted that Supreme Court's opinion in McConnell v. FEC, which upheld the Bipartisan Campaign Reform Act of 2002, said that Congress' authority to regulate election related speech is not limited to "vote for" or "vote against" statements, but can include communications that are "unmistakable, unambiguous, and suggestive of only one meaning" so that they can "only be interpreted by a reasonable person as containing advocacy of the defeat of one or more candidates." This standard had not been previously enforced because two federal courts had held its application unconstitutional, requiring the "magic words" of express endorsement or opposition. After the McConnell decision, the FEC said it had authority to regulate implied support or opposition as well. In the FEC press release on the case, FEC Chairman Michael Toner said, "This is one of the most important express advocacy cases the Commission has resolved in recent years. I am very pleased that the Commission was able to conciliate this case and provide further guidance to the public on the appropriate scope of the express advocacy test." The statement went on to note that the Sierra Club case "represents the first major case to consider the reach of the express advocacy test in light of the landmark Supreme Court case, McConnell v. FEC." The "Conscience" voter guide compared the environmental records of the Presidential candidates, George Bush and Sen. John Kerry (D-MA), as well as Sen. Mel Martinez (R-FL) and challenger Betty Castor. The heading said, "LET YOUR CONSCIENCE BE YOUR GUIDE", and the inside went on to say, "AND LET YOUR VOTE BE YOUR VOICE." It used check marks in boxes to compare the environmental record of the candidates, along with narrative descriptions that the FEC said "made it clear that a checkmark represented a favorable environmental record in the eyes of the Sierra Club," thus promoting Kerry and Castor and opposing Bush and Martinez. The July memo from the FEC General Counsel to the Commissioners responded to the Sierra Club's complaints that the standard is too vague by saying the "reasonable person test" is objective, and no express advocacy would be found "if there is genuine room for 'varied understanding of [reasonable] hearers.'" It appears the check boxes in the "Conscience" voter guide tipped the balance in the eyes of the FEC, since the other three guides were deemed acceptable and did not use checkboxes. Attorney Bob Bauer notes on his blog that the "Dirt" guide also had a favorable narrative description of Kerry's record on the environment, saying it builds on "a thirty year record of supporting strong environmental protection" while Bush has "consistently chosen to protect the interests of his oil and gas industry campaign contributors at the expense of public health..." and urges readers to go and "dig deeper for facts about the candidates." The General Counsel's July report distinguishes this guide from the "Conscience" guide by noting, "It also contains no symbols, percentages, or any other similar indication that a candidate agrees with the Sierra Club position 100% of the time." It appears the FEC sees this as urging the public "to become better informed," as opposed to favoring one candidate over the other. The Sierra Club's press release announcing the settlement called this a "subjective and murky interpretation" of the law, but said "we've decided we have better things to do with our money - like continuing to inform Americans where candidates stand on clean air, safe water and protecting our treasured lands." They note the FEC's decision is based on "a fuzzy definition that courts have found unconstitutionally vague" and that the Supreme Court's decision in McConnell"did not give the Commission authority to use this smell test." Instead, the Sierra Club says the case leaves nonprofits with less clarity about the law, which will "surely frighten some groups into silence, squelching efforts to educate voters on important issues." The impact of this case could be a widespread reluctance by nonprofits to provide voters with materials that mention one's conscience or values, or to use elections to hold politicians accountable for their records. It moves what was a clear cut area of law - the "magic words" definition of express advocacy - into vague and uncertain terrain similar to the IRS "facts and circumstances" test, which is used to determine when charities and religious organizations illegally intervene in elections. This has not worked well in tax law, and is not likely to work well in election law either. Nonprofits should continue to demand clear cut rules that allow them to express views on the actions and policies of elected officials and candidates for office.