Monday’s decision by the Supreme Court to allow unions and business groups to run issue-based advertising just ahead of Election Day may generate considerable fallout for the Federal Election Commission, as the already resource-strapped agency grapples with balancing ambitious timelines for the looming presidential primary season and the intricacies of what may become a landmark court decision.
According to FEC spokesman Bob Biersack, the Supreme Court ruling leaves the agency’s commissioners with two main options. The first is to develop guidance on the court’s decision using a regimented rulemaking process, a heavily bureaucratic and time-consuming procedure that could take months to complete.
During the process, Biersack said, agency lawyers could take a month to sketch out draft guidance on the high court’s decision. The agency’s five sitting commissioners — two Republicans and three Democrats — also would vote to begin a 30-day public comment period, followed by a public hearing and, if necessary, a reworking of the draft language to satisfy critics’ concerns.
Sometimes little more than a formality, 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. Reconciling all of the legal arguments, Biersack said, may be an especially time-consuming process.
“Figuring out where the line is [between] important public policy issues and talking about who should win elections is a pretty difficult line to draw,” he said.
A similar option the commission could employ to avoid becoming bogged down in the potential thicket, some observers claimed, is to ram through an emergency rulemaking process that saves time by bypassing the public comment period, but draws loud criticism for being undemocratic.
The final option, Biersack said, is for the agency to do nothing and police the placement of issue-based ads on a case-by-case basis.
“I don’t know whether [a rulemaking] is absolutely necessary,” Biersack said. “That’s what the commission has to decide.”
The Campaign Legal Center’s Paul Ryan said the FEC has shown it’s “perfectly happy” enforcing 527s on a case-by-case basis and may choose to do the same with issue ads. A downside to that approach, he said, is that some groups — knowingly or not — may push the boundaries of what the Supreme Court majority intended in Monday’s case.
And if the agency cracks down on potential ad violators, just as it has with 527s, Ryan said the guilty parties often are not caught for years and the fines are paltry.
On the other hand, Ryan said there are numerous advantages to issuing guidance. First and foremost, it likely would clear up any vagueness that elections experts may interpret from the court’s ruling.
“Rather than having organizations out there guessing whether or not their ads qualify for the exemption, the organization can look at a rule and decide for themselves whether they qualify for the exemption,” Ryan said.
“I don’t see a downside with the FEC promulgating a rule,” Ryan continued. However, he warned, “the downside with case-by-case enforcement [is] … it takes a long time and the fines may be pretty small and come long after the law has been broken to influence an election.”
Republican campaign finance lawyer Michael Toner, also a former commission chairman, said it is “clearly within the agency’s discretion” to begin the rulemaking process.
And should the FEC begin the process, Toner pointed to one paragraph in the high court’s majority opinion that could become a shell for any new issue-ad regulations by the agency.
“One thing that is striking about this opinion that the court lays out some concrete, tangible factors that form the basis for a safe harbor in terms of corporate or union advertising,” Toner said. “The court emphasizes more than anything else that ads that have those specific factors present are constitutionally protected.”
Writing for the majority, Chief Justice John Roberts wrote that the ads by the group in question, Wisconsin Right to Life, were legal because “no reasonable interpretation” would conclude that the ad was “an appeal to vote for or vote against a candidate.”
“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 candidates character, qualification or fitness for office.”
Toner speculated that an initial round of agency guidance in the wake of the court ruling simply may recommend that the majority’s opinion should be considered as a rough draft for a rulemaking.
“The specific language of the opinion can form the basis of regulations,” Toner said.
Still, some reformers claim the FEC has no choice but to begin the rulemaking process immediately. Craig Holman, a lobbyist at Public Citizen, predicted that an accelerated presidential primary season may compel commissioners to push for an emergency regulation.
And with reform groups marshalling their forces to help craft any potential guidelines at the FEC in time for the first presidential primary, Holman also said Monday’s decision may require splitting energies between two fronts. Portions of 2002’s Bipartisan Campaign Reform Act that wound up on the cutting-room floor, Holman said, detailed the exact types of issue ads unions and other groups that should be allowed to run during the blackout period.
“That would be an option that the reform community could pursue,” Holman said. “[But] it’s clearly too late for the 2008 election.”