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Advocacy Blog
Tuesday, August 16, 2005
FEC Draft Rulemaking on Electioneering Communications
The FEC released the General Counsel’s proposed changes in the rules on "electioneering communications": communications paid by corporations and unions that, because they refer to a federal candidate, cannot be aired within 30 days of a primary and 60 days of a general election. This is another in a series of adjustments to the Shays v. FEC litigation. The District Court had rejected one aspect of the Commission’s EC rule and complained that another was insufficiently considered and explained. Now the General Counsel has a new rule to offer.
Especially concerning nonprofits are:
1. What to do about the Court’s unhappiness with the unqualified exemption for 501(c)(3)s;
2. What to do about the Court’s objection to any requirement that "electioneering communications" be defined to include only communications placed for broadcast for a fee;
Throughout the Counsel's analysis runs a reference: PASO ("promote support attack or oppose"). This rulemaking proposal puts to the Commission, unavoidably, the question of whether it will condition exemption for various kinds of political communications on the absence of any language that could be deemed to "promote, attack, support or oppose" a federal candidate.
1. PASOs and 501(c)(3)s. Under current rules, 501(c)(3)s were entirely exempt, on the assumption that the tax code, which prohibits their intervention in political campaigns, would serve the purposes of the FECA as well in keeping them in line—i.e., apolitical. But the Shays Court was skeptical, questioning whether the FEC should leave the decisions on enforcement to the IRS. The General Counsel proposes to emphasize the FEC’s responsibility to monitor 501(c)(3) behavior, without waiting on the alertness of the IRS. But the OGC draft suggests that the exemption might be conditioned on the absence of PASO in any 501(c)(3) communications, such as grassroots lobbying communications which the Code permits them, on a limited basis, to conduct.
2. PASO and the "fee" paid for broadcasts. The Commission wishes to preserve the ability of stations to run public service advertisements featuring federal candidates. These ads are run without a fee; and the Shays Court believed that, even if unpaid, these ads constitute "electioneering communications." The Commission suggests that perhaps the PSAs could be let free, in the public interest, if any such ad is devoid of the offending PASO language.
The proposed rule can be found here
Posted by Jennifer Lowe
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