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FEC Begins Writing Rules for Issue Ads

The Federal Election Commission on Thursday formally began the arduous process of establishing ground rules for issue ads by labor unions and business groups, the once-banned television and radio spots the Supreme Court decided earlier this summer were in fact protected speech.

The nation’s high court narrowly ruled in June that Wisconsin Right to Life, an anti-abortion-rights group, should have been allowed to run broadcast ads during blackout periods just ahead of the 2004 election.

Under the 2002 Bipartisan Campaign Reform act, Wisconsin Right to Life and other issue-based groups were banned from using unregulated money — funds that come directly from corporate bank accounts — to finance broadcast ads within 30 days before a primary or 60 days before a general election.

The group’s original lawsuit, filed in 2004, attempted to force the FEC to temporarily lift the ban, so it could run ads criticizing the record of Sen. Russ Feingold (D-Wis.).

Since the Supreme Court’s 5-4 decision, many election law experts have been predicting a daunting new era of political ads, subversive or not. Short of saying “vote for” or “vote against,” the court’s ruling, some election law experts claim, effectively allows such groups to run ads as they please.

But on Thursday, the agency’s two Republican and three Democratic commissioners began writing the book on exactly what will and will not allowed — at least theoretically. And agency officials expect to vote on a final version of the guidelines before Dec. 1, 2007, just before the 30-day window begins in early primary states.

Ki Hong, an election law attorney at Skadden, Arps, Slate, Meagher & Flom LLP, said he expects the response from the campaign finance community, pro and con, will be extensive.

“This idea of exclusively talking about pending legislation or executive matters on its face looks simple, but it is actually a very tricky idea,” Hong said, explaining that at least one blackout-period exception outlined by the high court is opaque and may require additional FEC clarification.

The commission will accept comments on draft rules, available at, until Oct. 1.

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