[EL] A question about Issue Advocacy

[bzall at aol.com]

Kind of an odd question. Not every c4 is concerned about donor disclosure, but most, if not all, are concerned about the very real distinction between discussing issues with the public and discussing candidates. To paraphrase the Tenth Circuit's 2010 decision in Sampson vs Buescher: in express advocacy, the subject of discussion is an individual. In issue advocacy, the subject is discrete governmental action; no human being is evaluated.

The distinction between Issue Advocacy and Express Advocacy has long been recognized as an existential one for c4s, going as it does to the IRS's recognition of tax status under the "primary purpose" test. This is where the IRS has been tripping up in its recent proposed rulemaking for c4s - trying to catch issue advocacy that some people deem as potentially having an election-related effect. 

And the distinction matters for tax deductibility under Treas. reg. 1.162-20(a)(1) (non-deductibility of political expenditures) vs. 1.162-20(a)(2) (issue advocacy deductible) and for the 527(a) tax under 527(f). 

And the Supreme Court has long held that issue advocacy cannot be regulated under the less-"exacting" test applicable to campaign-related speech. See e.g., Wisconsin Right To Life and Citizens United. Thus, on the federal level and in many (though not all ) states, express advocacy triggers many regulatory requirements, not just donor disclosure, not applicable to issue advocacy. So, for example, certain disclaimers (different from donor disclosures) are not required; that, from a constitutional perspective, is forced speech, which matters a lot to some c4s and others. See, e.g. AID vs. Open Society or Rust v Sullivan.

And even assuming you meant to ask solely about FEC jurisdiction (and leaving aside Commissioner Ravel's bizarre theory that IA and EC are the same if someone, somewhere can conceive of a connection to an election), as Brad points out, if you want to avoid all the political committee rules and requirements, the distinction matters. Not just disclosing donors, but coming under the baleful glow of the Democratic Commissioners' gaze for other reasons as well, the distinction matters.



Barnaby Zall
_________________________

> On Jun 1, 2014, at 12:10 AM, "Smith, Brad" <BSmith at law.capital.edu> wrote:
> 
> Because the definition of "electioneering communications" only covers certain ads (broadcast ads naming a candidate and reaching 50,000 persons in the electorate) and only within 60 days of a general election or 30 days of a primary election, express advocacy is still the dividing line for a huge amount of speech about politics and issues, regardless of the arguments Craig makes below. For any ads being run now (unless airing in an electorate with a primary within 30 days) express advocacy is the trigger. And for print ads at any time, express advocacy is the trigger.
> 
> Furthermore, while c4 disclosure is the current focus or many reform advocates, it understates the importance of the distinction to say that the *only* relevance is that a c4 can, by avoiding express advocacy, "avoid disclosure requirements." It goes as well to the question of whom the government can regulate as a political committee, with the substantial administrative and reporting requirements mandated by that status beyond the increased disclosure mandates. And of course it applies not only to c4s, but to all organizations (including for-profit corporations, trade associations, and unions) and individuals that might communicate publicly about issues and candidates.
> 
> So express advocacy remains a very important concept in campaign finance law.
> 
> Bradley A. Smith
> 
> Josiah H. Blackmore II/Shirley M. Nault
> 
>    Professor of Law
> 
> Capital University Law School
> 
> 303 E. Broad St.
> 
> Columbus, OH 43215
> 
> 614.236.6317
> 
> http://law.capital.edu/faculty/bios/bsmith.aspx
> 
> From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] on behalf of Craig Holman [holman at aol.com]
> Sent: Saturday, May 31, 2014 8:49 PM
> To: legislation at mailman.lls.edu; law-election at uci.edu
> Subject: Re: [EL] A question about Issue Advocacy
> 
> Hello Frank:
> 
> When it comes to disclosure requirements, as you know, the key term in the law (BCRA) is "electioneering communications" rather than "issue advocacy." The law on electioneering communications was specifically crafted to provided a bright lines standard of what types of campaign ads are subject to the donor disclosure requirements. The law is very clear that c(4)s, and anyone else, who sponsor electioneering communications must disclose their significant donors. 
> 
> It is specifically an FEC regulation on implementing that law that allows c(4)s, and others, to evade the law. Section 201 is unequivocal that any organization, including a c(4), that pays for electioneering communications must disclose all donors of $1,000 or more. The FEC, in 11 CFR 104.20(c)(9), later abrogated the law by making such disclosures only applicable to donors who earmarked their donations for electioneering communications -- which, of course, no one does.
> 
> This abrogation of the law by the FEC even takes on a somewhat absurd tone, when the consequences of the FEC's 2007 regulation were finally realized. Just before the 2010 elections, the three Republicans on the FEC issued a statement endorsing an even narrower interpretation of the rule. They opined that electioneering groups should only have to disclose those donors who specified that their money would be used for a specific ad, aired in a specific race.  When Ellen Weintraub, a Democratic commissioner on the agency who voted for the disclosure rule in 2007, read the Republican statement, she commented: “This is an unprecedented narrow reading of the regulation. It’s certainly not what I intended when I voted for that regulation.”  Because few donors are apt to attach such specific instructions to their contributions, the effect of the FEC rule has been to gut the disclosure requirement enshrined in BCRA.
>  
> The law is not at fault here.
> 
> 
> Craig Holman, Ph.D.
> Government Affairs Lobbyist
> Public Citizen
> 215 Pennsylvania Avenue SE
> Washington, D.C. 20003
> T-(202) 454-5182
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> F-(202) 547-7392
> Holman at aol.com
> 
> 
> -----Original Message-----
> From: Frank Askin <faskin at kinoy.rutgers.edu>
> To: Trevor Potter <tpotter at capdale.com>; Rick Hasen <rhasen at law.uci.edu>; Legislation <legislation at mailman.lls.edu>; law-election <law-election at UCI.edu>
> Sent: Sat, May 31, 2014 8:03 pm
> Subject: [EL] A question about Issue Advocacy
> 
> Under current  law , does the distinction between issue advocacy and
> express advocacy have any relevance OTHER THAN (c4)s can avoid
> disclosure requirements by engaging in "issue advocacy" as opposed to
> express advocacy? FRANK
> 
> Prof. Frank Askin
> Distinguished Professor of Law       and Director
> Constitutional Litigation Clinic
> Rutgers Law School/Newark
> (973) 353-5687
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