Judge Reverses FEC Dismissal of Election Ad-Related Complaint

A U.S. District Court judge has rejected a Federal Election Commission dismissal of a campaign ad-disclosure related complaint by Citizens for Responsibility and Ethics in Washington (CREW), signaling that the FEC will need to take a more expansive view of political ads requiring disclosure.

Disclosure requirements are triggered when a group spends more than $10,000 on electioneering communications--broadcast, cable or satellite ads--in the run-up to primaries or general election, and even more extensive disclosures are required of political committees (PACs) whose "major purpose" is determined to be the "nomination or election of a candidate."

CREW complained about American Action Network, which spent over a million dollars on three TV ads, saying the group was an unregistered political committee.

The FEC, which looks at disclosures on a case-by-case basis, found that in this case the ad spending should not be considered in determining if their major purpose was to elect a candidate and dismissed the complaint.

But Judge Christopher Cooper found that the FEC had based that conclusion on an erroneous interpretation of the Supreme Court and First Amendment, and that while he would give the FEC deference on its own subject matter, elections, it was due deference on its interpretation of judicial decisions, which was the subject matter expertise of courts.

One reason the SEC excluded the spending in its "major purpose" determination was that they were issue ads, unrelated to the election of a candidate.

Judge Cooper said that there was plenty of precedent for applying disclosure requirements on issue ads, and that the FEC had pointed to an "outlier" decision to exclude that spending. "Considering the weight of [that] precedent," he said, "the Court has little trouble concluding that the Commissioners' decision to apply [the]express advocacy/issue speech distinction in the realm of disclosure, thereby excluding all non-express advocacy speech from consideration, was 'contrary to law.'"

Judge Cooper did not go further, however, as CREW had asked, and declare contrary to law ANY FEC approach that does not assess political committee status by treating all issue advertising as indicating the purpose of advocating for a candidate.

But he did say that CREW made a good case for concluding that "many, or even most, electioneering communications indicate a campaign-related purpose."

Another reason the FEC gave for dismissing the complaint was that the ad spending was only a fraction of the ANA's spending since its inception. In regards the latter, Crew said that the FEC was taking too narrow a view of political committee and that looking at the spending over the life of the group, rather than say recent spending that would indicated the group morphed from its original purpose into a political committee, was an impermissible interpretation of "major purpose."

Judge Cooper agreed. "Looking only a relative spending over an organization's lifetime runs the risk of ignoring the not unlikely possibility, contemplated by the Supreme Court that an organization's major purpose can change."

The judge set aside the FEC dismissal and remanded it back to the commission, which has 30 days to comply--find ANA an unregistered political committee-- or appeal the decision.

“This is a huge victory on many important grounds,” said CREW Executive Director Noah Bookbinder in a statement. “From now on, we hope to see a major change in the way the FEC approaches investigations of non-profit organizations engaged in politics. This could be the beginning of meaningful enforcement of rules meant to ensure transparency and restrict the ability of powerful interests to influence politics without disclosure.”

John Eggerton

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.