Posted August 22, 2006 by Paul S. Ryan

Keeping the Sham Issue Ad Loophole Closed

The Campaign Legal Center and Democracy 21 filed comments today with the FEC opposing a draft interim final rule proposed by Commissioner Hans von Spakovsky earlier this month, which would create an exemption from Bipartisan Campaign Reform Act (BCRA) “electioneering communication” restrictions for so-called grassroots lobbying ads.  The proposed rule would reopen the issue ad loophole closed by BCRA in 2002.  The FEC is scheduled to consider the draft interim final rule at its public meeting Tuesday, August 29.

In their joint comments, the Legal Center and Democracy 21 object to Commissioner von Spakovsky’s attempt to circumvent the normal rulemaking process by rushing the proposed “interim” rule through on an “emergency” basis—without formal public notice or opportunity for public comment.  Given that the request for this rulemaking was made more than 5 months ago, any purported emergency that exists now is a creation of the Commission’s own handling of this matter since February.  Consequently, adoption of the proposed interim final rule would violate the federal Administrative Procedure Act.

The comments also make clear that the Commission’s adoption of the proposed rule would have the serious effect of contradicting and undermining the Commission’s own litigating position in two pending court cases—Wisconsin Right to Life and Christian Civic League of Maine.  In those cases, the Commission is vigorously contesting the constitutional necessity for an “electioneering communication” exemption of the sort proposed by Commissioner von Spakovsky.

Finally, the Legal  Center and Democracy 21 object to the substance of the proposed rule, which on its face violates the plain language of BCRA and ignores the intent of BCRA’s Congressional sponsors.