Promoting and protecting nonprofit advocacy for a stronger democracy

Wednesday, June 27, 2007

How Will the FEC Respond to WRTL Ruling

Roll Call ($$) offers insights as to what the Federal Election Commission (FEC) may now do after the Supreme Court ruling in the WRTL case. An option for the FEC would be an emergency rulemaking process which circumvents the public comment period, but would inevitably bring criticism. The more probable scenario would be for the FEC to do nothing and continue to address possible issue ad violations on a case-by-case basis, as the agency does with complaints made on 527 groups.

Despite being a prolonged process, ideally, the FEC would issue guidance on the court decision using the rulemaking process. FEC spokesman Bob Biersack "suggested the procedure may set off a special-interests slugfest, pitting campaign finance reformers against a hodgepodge of issue-based groups such as the U.S. Chamber of Commerce and the AFL-CIO." Regardless, the importance is that any vagueness set forth by Chief Justice's express advocacy test would hopefully be made a bit clearer. Republican campaign finance lawyer Michael Toner noted that a paragraph in the majority opinion could act as a starting point for any new FEC regulations. The paragraph states:

First, their content is consistent with that of a genuine issue ad; the ads focus on a legislative issue, take a position on the issue, exhort the public to adopt that position, and urge the public to contact public officials with respect to the matter," Roberts wrote in his opinion. "Second, their content lacks indicia of express advocacy: the ads do not mention an election, candidacy, political party or challenger; and they do not take a position on the candidate's character, qualification or fitness for office.

We can only wait to see which route the FEC will take in responding to the court ruling. Preferably some clear guidance will be set because as the 2008 campaign season begins nonprofits will remain active in public policy and should not have to wonder whether or not they are pushing the boundaries.