It really isn’t called "soft money" much anymore, but in the wake of the U.S. Supreme Court’s decision in the Wisconsin Right to Life case gutting key provisions of the McCain-Feingold law, our firm has received a number of inquiries from clients about how to comply with rules in this new era, where bona fide issue advocacy communications in elections that mention the names of elected officials will benefit from more constitutional protection and less regulation, not just in Federal elections, but in all elections.
Keeping in mind all the general disclaimers that we can’t provide legal advice over the internet and that regulation of these communications is highly fact related, here are some general considerations for issue advocacy groups, PACs, and candidates at the Federal and state level who must consider issue-oriented communications after Wisconsin Right to Life:
A communication is not protected issue advocacy if:
– it appears to have the overall major purpose of supporting or opposing a specific candidate;
-it uses words of express advocacy (support, oppose, vote for, vote against);
-it uses express content that attacks the character or fitness for office of a specific candidate. (This is a new development coming directly from the Wisconsin Right to Life case.)
-it is controlled by a candidate.
Bona fide issue advocacy communications exempt from campaign limits and disclosure rules will not have any of the above factors present in the text of their communications.
Here in California, FPPC regulators will rely heavily on Section 18225.7 of the regulations concerning expenditures "made at the behest of" a candidate regarding candidate control issues and whether or not expenditures are bona fide issue advocacy activities exempt from disclosure and contribution limits. These rules include implied liability for common vendor and service providers between a candidate committee and an issue advocacy committee, but also establish certain safe harbors. As always, if a group intends to influence legislation during an election, consult a lawyer!