A Compromise

      Chairman Lenhard got the votes for a compromise, amended slightly on a suggestion from Commissioner Weintraub.  Here is what the agency did, about which there is more to say later, after reflection:

      1.  Reporting:
 
      The reporting requirement was retained for the exempt grassroots lobbying communications.  This is a good result, on this issue.  And it is also a decision, which is also good:  the same cannot be said, necessarily, about the rest of the adopted rule:

      2.  The rest of the rule:
 
      A "safe harbor" has been added, and for any advertising, it depends on the exclusion of any "mention of any election, candidacy, political party, opposing candidate, or voting by the general public," and on absence of any position taken on a candidate's character, qualifications, or fitness for office."  If these are nowhere to be found in the ad, and if the ad is focused on a public issue and urges that a particular action or position be taken, then the safe harbor is available.

      The rule does not stop there and it anticipates that other communications might be exempt as reasonably interpreted other than as an appeal for or against a candidate.  The "rule of interpretation" chosen by the agency is nebulous:  it provides that the FEC "will consider" any express electoral content, and any other content, in deciding "on balance" whether there is a non-election related interpretation reasonably read into a communication.  Chairman Lenhard argued that an "analytical process" was needed for the Commission to deal with cases not falling within the safe harbor.

      It does seem that clear that with this rule, some grassroots lobbying might include electoral content ("indicia of express advocacy") and others might not.  For example, a focus on a public policy issue, accompanied with a call for a particular position to be taken, might fall within the safe harbor, but it might not; and the rule expressly contemplates that in this latter case, the FEC might still decide "on balance" that the exemption applies, even if the ad includes specific electoral content—a "mention" of a candidate or opposing candidate, or the party, or the upcoming election.

      The FEC here steps beyond where the Court landed, and if the Court chose not to go further, then it is not clear why the FEC felt compelled to keep going. It did, apparently in the interests of "compromise."

      3.  Concluding Note:

      The FEC did include within the safe harbor a protection for promotions of a commercial "transaction," such as a book or film or video.  No complaint is registered here:  this exemption made sense a couple of years ago, when first raised in response to the legal problems encountered by documentary promotions like Michael Moore's, and if the FEC was prepared to range beyond the issue before the Court in WRTL, why not?  At least it can be said that it does no harm. 

Bob Bauer