Wednesday, November 26, 2008

FEC May Redefine Issue Ad Rules

CQ Politics:

The NRLC submitted two scripts of nearly identical ads in September. The one approved by the FEC, in a non-public vote taken Monday, did not include a line stating that Obama is “a candidate whose word you can’t believe in” — which appeared to play off Obama’s campaign promise of “change you can believe in.”

The commission ruled that the version of the ad containing that language crossed the line by advocating the election or defeat of a candidate, which is not allowed by federal law governing issue ads.

The FEC’s statement leaves a lot of questions unanswered about how far issue ads that are financed with unregulated money can go in advocating for or against a candidate.

Nonetheless, the decision, approved by a 4-2 vote of the commissioners, could still affect future elections — possibly including the year’s three remaining elections for federal office, a Dec. 2 Senate election runoff in Georgia and hurricane-delayed House general elections in Louisiana’s 2nd and 4th congressional districts.

The advisory opinion is the FEC’s first that addresses a Supreme Court decision, issued in June 2007 in the case of Wisconsin Right to Life v. FEC, that allows corporations, unions and nonprofit groups to engage in issue advertising at any time in a campaign, right up through Election Day, as long as the ads do not expressly advocate the election or defeat of a candidate. Since a Supreme Court ruling in 1976, the term “express advocacy” has essentially boiled down to statements that people should “vote for” or “vote against” a particular candidate. Those running issue ads have for years dealt with this so-called magic words test by stating that a candidate is right or wrong on issues, rather than saying the candidate should be elected or defeated.

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