Posted November 16, 2007 by Paul S. Ryan

Will FEC Proposed Rule Gut BCRA “Electioneering Communication” Provisions?

The FEC today published alternative draft rules to interpret and implement the Supreme Court’s decision earlier this year in Wisconsin Right to Life.  Both alternative draft rules could be interpreted as going much further than the Court required and substantially weakening the “electioneering communication” restrictions established by Congress when it enacted the Bipartisan Campaign Reform Act of 2002 (BCRA).

In WRTL, the Supreme Court held that electioneering communications that are not express advocacy, or the “functional equivalent of express advocacy,” may not constitutionally be subject to the prohibition on the use of corporate and union treasury funds to pay for electioneering communications, a restriction imposed by Title II of BCRA.  Further, the Court said that an “ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”  The Court found that the ads at issue in WRTL were susceptible of a reasonable interpretation other than as an appeal to vote for or against a candidate for all of the following reasons:

First, their content is consistent with that of a genuine issue ad: The ads focus on a legislative issue, take a position on the issue, exhort the public to adopt that position, and urge the public to contact public officials with respect to the matter.  Second, their content lacks indicia of express advocacy: The ads do not mention an election, candidacy, political party, or challenger; and they do not take a position on a candidate’s character, qualifications, or fitness for office.

It was the fact that WRTL’s ads possessed all of these characteristics that led the Court to conclude they were not the functional equivalent of “express advocacy” and, therefore, could not be subject to the corporate/union funding restrictions.

The FEC’s initial proposed rule (NPRM 2007-16) largely mirrored the Court’s opinion by establishing an umbrella “no reasonable interpretation” test and then establishing a de facto safe harbor for ads possessing all of the characteristics listed above.  The Campaign Legal Center supported this approach and urged the Commission to consider any “indicia of express advocacy” in an ad to be strong evidence that the ad is the equivalent of “express advocacy” and, consequently, still subject to regulation.

Both alternative draft rules published today could be interpreted as establishing an exemption much broader than that which was proposed in NPRM 2007-16—and much broader than that which the Court found necessary to protect WRTL’s constitutional rights.

It would be a mistake if the alternative rules published today exempt from the “electioneering communication” restrictions any ad that “focuses on a public policy issue and either urges a candidate to take a position on the issue or urges the public to contact the candidate about the issue”—a rule open to the interpretation that ads may be exempt even if the they also contain all of the “indicial of express advocacy” not possessed by the ads exempt by the WRTL Court.

In other words, one might argue that ad qualifies for the FEC’s new proposed exemption even if it mentions an election, candidacy, political party or challenger and takes a position on a candidate’s character, qualifications, or fitness for office—so long as the ad “focuses on a public policy issue and either urges a candidate to take a position on the issue or urges the public to contact the candidate about the issue.”

Further, one of the alternatives would exempt such ads not only from the corporate/union funding restrictions litigated in the WRTL case, but also from BCRA disclosure requirements that were upheld as constitutional in McConnell and not challenged in WRTL.

The Campaign Legal Center urges the FEC to revert to the rule proposed in NPRM 2007-16 and, further, to continue to apply BCRA’s “electioneering communication” disclosure requirements to all ads meeting the statutory definition of that term.