RAMSTACK: Appeals court tells FEC to enforce law on ads

By Tom Ramstack | Monday, June 16, 2008

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Advocacy groups can expect the Federal Election Commission to watch who influences the content of their ads more carefully as a result of a federal appeals court decision last week.

Unless the decision is overturned on appeal, the Federal Election Commission must change its interpretation and enforcement of the Bipartisan Campaign Reform Act as a result of the ruling by the U.S. Court of Appeals for the District of Columbia Circuit.

The "decision confirms what supporters of this law have been saying all along," said Rep. Christopher Shays, Connecticut Republican, who sued the FEC over the issue. "The FEC is evading its responsibility to implement the Bipartisan Campaign Reform Act as it was enacted."

The right of groups to support candidates through advertising is generally protected as free speech under the First Amendment. However, if the ads suggest voters choose one candidate over another, they are not considered free speech but "electioneering" under federal election laws.

The FEC is supposed to clamp down on the ads if candidates influence their content. In those cases, the groups running the ads must report their funding sources to the FEC and describe how they spent the money.

Before the Bipartisan Campaign Reform Act of 2002, advocacy groups had wider discretion on what they could say in their ads, unless they had an agreement with politicians on the content of their messages. At that point, the FEC could intervene to impose restrictions, such as forbidding the ads' sponsors from advocating the election or defeat of specific politicians or republishing their campaign material.

The Bipartisan Campaign Reform Act, also known by its sponsors' names as the McCain-Feingold Act, said a formal agreement should not be necessary for the FEC to restrict the content of advocacy ads. Instead, even informal efforts that "coordinate" the messages of ads with political campaigns can trigger election law enforcement.

By "coordinated," the act means candidates or their campaign workers influenced or approved messages.

Mr. Shays' lawsuit accused the FEC of failing to adequately enforce the act.

Mr. Shays argued the commission's lax enforcement of the law allowed candidates to accept "soft money" from supporters. In other words, candidates did not get direct cash contributions but they did get ads in their favor paid for by people trying to win their attention.

The appeals court largely agreed with Mr. Shays.

Standards the commission used to determine whether to investigate ad sponsors make it "eminently possible for soft money to be used in connection with federal elections," the court said.

As a result, "It is not only plausible, but likely, that candidates would feel grateful for such donations and that donors would seek to exploit that gratitude," the ruling said.

The court ordered the FEC to revise its standards to prevent "soft money" donations through campaign ads.

The Center for Competitive Politics, a public policy organization, criticized the court's decision to reject the commission's standards for investigation without replacing them with clearer ones.

"We fear too many citizens will learn it is better not to run ads at all," said Steve Hoersting, the center's vice president.

An FEC spokeswoman said the commission is reviewing the ruling and has not decided whether to appeal.

* Above the Law runs on Mondays. Call Tom Ramstack at 202/636-3180 or e-mail tramstack@washingtontimes.com.

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