Hearings on electioneering communications

The Commission held public hearings on October 17 and 18, 2007, on proposed changes to its rules governing electioneering communications (ECs). The Commission published a Notice of Proposed Rulemaking (NPRM) on August 31, 2007, seeking public comment on proposed changes to these rules in response to the Supreme Court's decision in FEC v. Wisconsin Right to Life, Inc. (WRTL II). (See the August 2007 Record.) Fifteen commenters testified on the NPRM and offered their views to the Commission on the scope and substance of the proposed rules changes.

Background

The Bipartisan Campaign Reform Act of 2002 (BCRA) and Commission regulations define an EC as a broadcast, cable or satellite communication that 1) refers to a clearly identified federal candidate, 2) is publicly distributed within 30 days of a primary election or within 60 days of a general election and 3) is targeted to the relevant electorate.(1)

U.S.C. §434(f)(3)(A)(i) and 11 CFR 100.29(a). Corporations and labor organizations are prohibited from using their general treasury funds to finance ECs. 2 U.S.C. §441b(b)(2) and 11 CFR 114.2(b)(2)(iii). Those making ECs are subject to several reporting and disclosure requirements. 2 U.S.C. §§434(f)(1) and (2) and §441d(a).

In WRTL II the Supreme Court reviewed an "as applied" challenge to EC funding prohibitions where Wisconsin Right to Life, Inc., a 501(c)(4) nonprofit corporation, sought to use its own general treasury funds, which included donations from other corporations, to pay for broadcast ads during the EC period that referred to both U.S. Senators from Wisconsin, one of whom was a clearly identified candidate. The Supreme Court held that because the ads in question were not the "functional equivalent of express advocacy," the EC funding prohibitions were unconstitutional as applied to the plaintiff's ads.

Testimony regarding proposed rules on electioneering communications

The Commission's NPRM proposed two alternative methods of implementing the Supreme Court's WRTL II decision. Alternative 1 would create an exemption for certain types of ECs from the corporate or labor organization funding prohibitions, but would not alter the EC reporting requirements (which would require the entities financing ECs to report their activities to the FEC once they spend more than $10,000 in a calendar year on ECs). Alternative 2 would create an exemption for these communications from the definition of electioneering communication, so that such communications would not be considered ECs and would not be subject to either the corporate and labor organization funding prohibitions or the EC disclosure requirements.

Commenters who favored Alternative 1 argued that simply allowing corporations and labor organizations to fund ECs that are not the "functional equivalent of express advocacy" is a proper interpretation of the Supreme Court's holding in WRTL II and that corporations and labor organizations should still be required to disclose their sources of funding for such ads. Furthermore, these commenters pointed out that the Wisconsin Right to Life plaintiffs did not challenge any of the EC disclosure requirements. Paul Ryan, Donald Simon, Stephen Hoersting, Brian Svoboda, Allison Hayward and Marc Elias generally favored adoption of Alternative 1.

James Bopp, Laurence Gold, Heidi Abegg, Jan Baran, Michael Boos, Jessica Robinson, John Sullivan and Michael Trister generally urged the Commission to adopt Alternative 2. These commenters argued that Alternative 2 was the proper implementation of the Supreme Court's holding in WRTL II and that the disclosure requirements of Alternative 1 were burdensome and impractical because they could require that corporations and labor organizations disclose the names and information of individuals who provided funds at any time to those entities, including funds from dues-paying members of a union and unrestricted donations to an organization.

Jeremiah Morgan, representing the Free Speech Coalition, Inc., opposed both alternative rules and instead urged the Commission to promulgate narrow definitions of express advocacy and its "functional equivalent" and clarify that the FEC's reporting and disclaimer requirements extend no further.

Testimony regarding the definition of "express advocacy"

In addition to requesting comments on proposed changes to the EC rules, the Commission asked in the NPRM if the decision in WRTL II requires it to amend its definition of "express advocacy." Several commenters argued that, in the wake of WRTL II, the Commission should repeal a provision that defines as express advocacy communications that, when taken as a whole and with limited reference to external events, such as the proximity to an election, could only be interpreted by a reasonable person as containing advocacy of the election or defeat of one or more clearly identified candidates.2 11 CFR 100.22(b). Other commenters, by contrast, were opposed to altering the definition of express advocacy in this rulemaking.

Additional information

The full text of the NPRM, written comments in response to the NPRM and a transcript of the hearings are available on the FEC web site at http://transition.fec.gov/law/law_rulemakings.shtml#ec07.

Audio files of public hearings are available at http://transition.fec.gov/pdf/nprm/electioneering_comm/2007/publichearing-oct-17-18-2007.shtml.

1) A separate provision defines as express advocacy communications that use such phrases as "Vote for" or "vote against." 11 CFR 100.22(a). The Commission does not propose altering this provision.