[EL] A question about Issue Advocacy

[Smith, Brad]

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
C-(202) 905-7413
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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