FEC Deadlocks on Grassroots Lobbying Broadcast Exemption - September 12, 2006 Vol. 7, No. 18

September 12, 2006 Vol. 7, No. 18:

Published: 09/12/2006

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OMB Watch Statement: FEC Decision is a Blow to Civic Participation

FEC Deadlocks on Grassroots Lobbying Broadcast Exemption

On Aug. 29 the Federal Election Commission (FEC) voted down a proposed interim rule that would have exempted grassroots lobbying broadcasts from a federal rule banning ads that mention an incumbent before an election. The vote on the grassroots exemption failed on a 3-3 party-line vote, with Democrats rejecting all proposals. (A majority of the six FEC commissioners, of which three are appointed by each major political party, must approve any action undertaken by the commission.) So the 60-day blackout period applies to this election season, and nonprofit groups cannot lobby members of Congress up for reelection through broadcast ads.

The grassroots exemption proposal was sponsored by FEC Commissioner Hans A. von Spakovsky, a Republican. It was released on Aug. 3 and was supported by his Republican colleagues. It would have allowed nonprofits, corporations and unions to fund grassroots lobbying advertisements 60 days before a general election or 30 days before a primary, on either television or the radio if the following conditions were met.

The broadcast must:

Be directed at the lawmaker in his capacity as an incumbent officeholder, not a candidate;
Discuss a public policy issue currently under consideration;
Urge either the officeholder or the general public to take a specific position on an issue, and in the case of the general public, urge them to contact the officeholder.

But the broadcast could not:

Discuss the officeholder's character or fitness for office;
Reference any political party or election; or
Promote, support, attack or oppose any candidate for federal office.

The proposed interim final rule was spurred by a February 2006 petition for rulemaking filed by the AFL-CIO, Alliance for Justice, the U.S. Chamber of Commerce, the National Education Association and OMB Watch. It would have been effective through Sept. 2007, at which point the FEC would have considered a final rule.

During FEC discussions of the possible exemption, Commissioner Ellen Weintraub, a Democrat, objected to the proposal because a full rulemaking process had not taken place. However, the three Democrats then voted to block such a process and also blocked a motion authorizing the FEC's attorneys to prepare draft rules for discussion, claiming they want to wait for guidance from the courts.

The Notice of Disposition of Petition for Rulemaking, which lays out the FEC's decision, states the FEC "may consider a rulemaking on this subject in the future." This is unlikely, however, to occur before two cases challenging application of the rule to specific situations are resolved by the courts. For more information about those cases see Grassroots Lobbying Issue Hits FEC and the Courts (OMB Watcher Apr. 18, 2006) and Federal Court Rejects Challenge to Limitations on Grassroots Broadcasts (OMB Watcher May 16, 2006).