Posted November 20, 2007 by Paul S. Ryan

Chairman Lenhard's Proposal Falls Short

The FEC began today by postponing its meeting originally scheduled for 10 a.m. to 1:30 p.m.  Then, moments ago, the Commission distributed yet another alternative draft rule to interpret the Supreme Court’s decision in WRTL, this one coming from Chairman Lenhard.  But Chairman Lenhard’s proposal falls short.

Chairman Lenhard’s proposal essentially combines Commissioner Weintraub’s proposal circulated late yesterday with the draft circulated on Friday by the Commission’s Office of General Council (OGC).  Unfortunately, Chairman Lenhard’s new draft retains the most problematic element of the OGC draft—namely, that it could be interpreted to allow an exemption for any ad that “focuses on a public policy issue”—even one containing all the “indicia of express advocacy”—because it would establish that 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” “has an interpretation other than as an appeal to vote for or against a clearly identified Federal candidate.”  See proposed 11 C.F.R. § 114.15(c)(2).

For this reason, the Campaign Legal Center opposes Chairman Lenhard’s alternative draft rule and urges the Commission to promulgate a rule based either on that which was proposed in NPRM 2007-16 or on Commissioner Weintraub’s proposal circulated late yesterday—though making clear in the new rule that an ad’s inclusion of “indicia of express advocacy” will be considered evidence that the ad is the functional equivalent of express advocacy and not eligible for exemption under the new rule (neither the NPRM 2007-16 proposal nor Commissioner Weintraub’s proposal make this point clear).