FEC Looks to Clarify Rules Prior to Primaries

The Federal Election Commission is scheduled to vote Tuesday on whether to redefine electioneering communications.

The FEC proposed two options, Draft A and Draft B, to square the rules with a Supreme Court decision. Which one it picks could mean millions of dollars for broadcasters.

The Supreme Court in June held that simply because a broadcast ad mentions a federal candidate does not make it an “electioneering communication” if it could reasonably be interpreted as addressing an issue, rather than opposing or supporting a candidate's election. This means there will be room for marketers to get creative and target candidates so long as they target issues.

The FEC promised to square its rules with that decision in time for broadcasters and political advertisers to know the rules of the road before the first primary, which could be as early as late December.

The FEC proposed rewriting the rules in two ways. The first, Draft A, would carve out an exemption from the “electioneering communications” rules to allow corporations and unions to directly fund issue ads on TV and radio in the 30 days before a primary or 60 days prior to a general election. This reworking would also permit those ads to mention federal candidates -- “Call Congressman John Doe and ask him to vote against the immigration bill,” for example -- so long as the ads can be interpreted as addressing an issue rather trying to elect or defeat a candidate.

The second method, Draft B, would redefine prohibited “electioneering communications” to exclude such ads entirely.

The distinction is vital to broadcasters (the restrictions do not apply to print ads), advertisers and advocacy groups.

In the first instance, advertisers would still have to identify the source of the funding behind the ads to the FEC and on the air -- a situation favored by fans of finance reform. In the second case, they would not, which would make advocacy groups more willing to advertise.

In addition, if the electioneering communications definition were rewritten, other kinds of ads mentioning candidates would also be allowed -- for instance, an ad for a local car dealer, with that dealer also running for Congress.

Big media companies and ad agencies are concerned on two fronts. First, they want to protect and strengthen commercial-speech freedoms from incursions they said were made by the campaign-finance-reform laws. But they also want to get as many ad dollars as possible from corporations and unions in the run-up to presidential primaries for what are shaping up to be some hotly contested congressional seats.

Given the number of well-funded groups, former FEC deputy general counsel James Kahl said, they will be very willing to push the limits and “quite motivated to use the full breadth of the Supreme Court decision,” particularly in swing states, “so long as the FEC lets them do it.” Having to disclose their connection could discourage some advertisers, however.

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.