Yesterday the Federal Election Commission agreed on a so-called “safe-harbor” that would allow for issue ad spending without the usual FEC regulation during Federal election campaigns.
Under the newly adopted rule, an established nonprofit advocacy organization whose major purpose is not candidate elections, a corporation, or a union, can fund communications that mention a Federal candidate’s name, even during an election, where the communication contains no words of “express advocacy,” (i.e., “vote for,” “vote against,” “support,” “oppose,” etc.) and where the content of the communication 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.
The new rule isn’t much help to clever political consultants that want to start new nonprofit organizations for the purpose of intervening in an election with what liberals call “sham” election ads. However, it is a big help to existing nonprofit organizations that want to continue articulating their mission to the public, even during an election campaign. These groups will not suffer the McCain-Feingold FEC regulation or a “black-out” of criticism of elected officials during election campaigns any longer, as long as the communication sticks to policy issues.
There are still some details to be worked out. For instance, the FEC has promised to publish some “examples” of safe-harbor content. Also, there is a lingering issue involving whether contributions of $1,000 or more for such communications should be disclosed. Currently, a nonprofit advocacy organization does not make such disclosures to the public.
The Wisconsin Right to Life case and FEC regulations will be taken note of by California’s Fair Political Practices Commission, which is independent of the FEC, but is bound to follow the “law of the land” as expressed in the WRTL decision supporting the free speech of grass-roots advocacy organizations even during election campaigns.