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FEC to Change Rules on Ad Blackouts

The Federal Election Commission will vote Tuesday on new rules tailored around a June Supreme Court decision tossing out advertising blackout periods for some outside political groups in the weeks before federal elections.

In August, the agency circulated a preliminary version of the rules in response to the high court’s decision involving Wisconsin Right to Life, an anti-abortion rights group. The organization last summer successfully challenged a restriction on so-called electioneering communications by outside groups in the 30 days before a primary and 60 days before a general election.

Dozens of groups responded to the FEC’s draft proposals, which also generated hundreds of pages of testimony at a two-day hearing in mid-October. Since then, FEC spokesman Bob Biersack said, agency lawyers have worked to address the public’s concerns and expect to wrap up the regulatory revamp by later this week.

The FEC will vote on the new rules at a meeting next Tuesday morning. If four commissioners approve the rewrite, Members of Congress will have 30 days to consider the regulations before they become final.

Throughout the process, Biersack said one of the primary sticking points in crafting the new rules involves whether the high court’s recent ruling requires outside political groups such as Wisconsin Right to Life, which is not a political action committee, to disclose ads aired during the once-banned 30- and 60-day periods; after all, some detractors of the new disclosure requirements claimed, the high court agreed that those ads were protected speech.

The Supreme Court’s decision “said that if an ad is a true issue ad — if it’s not the functional equivalent of express advocacy — then it’s exempt from the prohibition of corporate or union financing,” Biersack said. “But there’s a separate section in the [law] that talks about the fact that electioneering communications have to be disclosed.”

“So the question is: Does the Wisconsin Right to Life decision have any effect on the disclosure of these [ads] for purposes of funding nonelectioneering communications?” Biersack said.

Biersack also said that some groups have expressed concerns that new FEC regulations may unintentionally alter other areas of the election law in the process of hashing out a workable exemption to the 30- and 60-day blackout periods. Brian Svoboda, a lawyer at Perkins Coie who represents the Democratic Congressional Campaign Committee, wrote to the agency in early October and warned agency lawyers to “take care” in straying outside of the legal boundaries of the Supreme Court-ordered regulatory fix.

“The Commission should avoid crafting ‘safe harbor’ provisions for so-called common types of communications,” Svoboda wrote. “This is especially true for subjects that the [Supreme] Court did not reach at all, such as commercial or business advertisements, public service announcements or charitable promotion activities. The task of creating ‘safe harbors’ beyond the reach of [campaign law] belongs to court — not to the commission.”

While not addressing Svoboda’s letter directly, Biersack suggested that the mandated regulatory revisions are not occurring in a vacuum: Invariably, the new rules may bleed into other areas of the law.

“People said, ‘Don’t go there. This decision doesn’t require you to do this,’” Biersack said. “[But] of course it does. … This decision changes things.”

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