FEC attorneys question campaign law's ad rules

By The Associated Press

07.31.02

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WASHINGTON — Government lawyers opened the door yesterday to allowing interest groups, ranging from the National Rifle Association to the Sierra Club, to continue spending unlimited amounts of money on political ads despite new restrictions passed by Congress.

The law, scheduled to take effect after the fall election, will bar many groups from airing ads identifying federal candidates within 30 days of a primary and 60 days of a general election.

The law imposes new disclosure requirements on political action committees and others that would still be allowed to air such "issue ads," which mention a federal candidate but do not expressly call for his or her election or defeat.

Its sponsors, including Sens. John McCain, R-Ariz., and Russ Feingold, D-Wis., contend many groups have been using issue ads to get around a ban on the use of corporate or union money to influence federal elections. Such so-called soft money can be used for issue ads.

In the Federal Election Commission's first proposal for implementing the ad restrictions, released yesterday, FEC lawyers said the new ad ban may go further than a landmark 1986 Supreme Court ruling allows.

In FEC v. Massachusetts Citizens for Life, the high court, as interpreted by lower courts, ruled that tax-exempt groups that took no more than minuscule amounts of corporate or union money could air political ads supporting or opposing federal candidates.

Federal law generally bans the use of corporate or union funds, also known as soft money, in ads directly calling for a federal candidate's election or defeat.

Commission attorneys said that to interpret the new campaign-finance law in line with that decision, an exception to the election-time ban on issue ads should apply to groups that meet the conditions spelled out in the Supreme Court ruling.

Wayne LaPierre, executive vice president of the National Rifle Association, said the NRA would seek such an exemption if the commission adopts it. The group is among those suing to try to overturn the new law.

"It is very easy for us to say 100 percent of the money we use on advertising comes from individual citizens and no corporate dollars are used," LaPierre said. "We are a dues-paying, contribution, member organization and any corporate dollars that are mixed in there are an insignificant amount and are easy to segregate."

Center for Responsive Politics Executive Director Larry Noble, a former FEC attorney, predicted that if the NRA sought the exemption, the question of which groups qualify for "MCFL" (Massachusetts Citizens for Life) status would likely wind up before the Supreme Court.

Noble noted that the FEC's proposed rule contemplates only letting groups that take no corporate or union money qualify, a tougher standard than the lower courts have imposed.

FEC Chairman David Mason cautioned that the proposed rule is just a draft. The commission plans a two-day hearing on it starting Aug. 28 and could make substantial changes before approving a plan. It will consider constitutional issues along the way.

"Where the commission has constitutional leeway, we want to be sure we're reading it properly," Mason said.

The proposed ad rule asks for public comment on whether the FEC should exempt some ads, including those that:

• Urge support for or opposition to legislation and urge people to call a particular member of Congress about it.
• Refer to a bill or law by its popular name if that includes the name of a federal candidate, as long as that is the ad's only reference to the candidate.
• Refer to a clearly identified federal candidate but promote tourism or a ballot measure.
• Are run by state or local candidates and clearly identify a federal candidate, but do so only incidentally to the mention of state and local candidates, such as mentioning whether a state candidate supported or opposed the president's education policy.

The ad restrictions are among the law's most controversial features.

Besides the NRA, the AFL-CIO, U.S. Chamber of Commerce and the Christian Coalition are among those arguing the law violates free-speech rights and are asking a court to overturn it. The Sierra Club's political ads also would be affected by the law; it isn't suing, however.

Chamber attorney Jan Baran said he was reviewing the proposed rule.

"Chances are high we will comment on it but we consider it to be a sideshow," Baran said. "The main event is the lawsuit and if the Supreme Court strikes down the statute these regulations become totally irrelevant."

In addition to the ad ban, the Chamber opposes the law's requirement that groups that could still run issue ads close to an election disclose details on the spending to the FEC within 24 hours.

The commission's first move to implement part of the law, its ban on soft-money contributions to national political parties and federal candidates, faces a lawsuit by the law's sponsors. They say the FEC has opened loopholes.

Update

Groups seek exemption from campaign law's ad restrictions
Meanwhile, congressional GOP group's attorney tells FEC free-speech issues must be foremost in commissioners' minds as they write ad rules.  08.28.02

Related

Campaign-finance law sponsors to challenge FEC rules
Strategy targeting regulators' plan to enforce soft-money ban comes as Republican Party seeks details on its rivals' fund raising, ads as part of its bid to overturn new law.  06.26.02