Two important rulings made public last week by the Federal Election Commission demonstrate the FEC is attempting to follow guidance established by the U.S. Supreme Court in the so-called Wisconsin Right to Life case, and one of the rulings adds to a new body of law which slightly expands the permissable content of candidate-related political speech that is unregulated by the FEC. Because the rulings are based on interpretations of U.S. Supreme Court decisions, they can and should influence the regulatory posture of the California Fair Political Practices Commission.
The decisions apply to so-called "527" issue advocacy groups but they should also be of note to nonprofit advocacy organizations organized as corporations and tax exempt under different sections of the IRS tax code.
In one of the decisions, which is a detailed written ruling, the FEC found that the Pennsylvania-based Lantern Project did not cross the line to require Federal political action committee status (and therefore FEC regulation, contribution limits, ban on corporate/union contributions, and disclosure) when it spent over $1.5 million to fund eight television advertisements and other media which criticized former Republican U.S. Senator Rick Santorum’s position on several policy issues several months prior to the election (which he lost to Democrat Bob Casey). The content of the advertising not only included discussion of issues and Santorum’s vote on those issues, but it also included words that complainants alleged constituted "express advocacy" of the defeat of Santorum in the upcoming election, and should have kicked-in FEC regulation, namely, the tag line, "What was he thinking?" The FEC found that the words were not "unmistakable, unambiguous, and suggestive of only one meaning," (election intervention) and rejected the complaint. FEC MUR 5854.
In a separate unwritten decision, the FEC found that the union-backed American Leadership Project, which ran issue ads praising Hillary Clinton on health care issues and which were critical of Barack Hussein Obama for lacking ideas to fix the economy, also were legal and not subject to FEC regulation. FEC MUR 5977, case closed without further action.
It might be said that the FEC is "loosening up" on issue advocacy groups through these decisions. That is what liberal election lawyers think. Not too long ago the "Swift Boat Veterans" group was fined a record amount for issue ads deemed "election intervention" in the 2004 presidential elections. However, it is more accurate to state that the FEC is apparently trying to follow the trend established by the U.S. Supreme Court in the Wisconsin Right to Life case to protect the First Amendment and regulate only speech that is singularly electioneering. But in a 3-3 Republican vs. Democrat Commission, outcomes can continue to be skewed and enforcement uneven…….as well as the legal reasoning.