Later this week, the FEC will consider an “explanation and justification” of the rules it adopted to implement the Supreme Court’s “issue advertising” decision in Wisconsin Right to Life.   This “E&J” is a rationale and an interpretative guide.  Included within it are the examples used to illustrate the potential application of the rules to particular cases.  Better than no guidance at all, the draft before the FEC this Thursday confirms what the rule should have left no doubt about: the law is now pretty much a mess, and the FEC stands precious little chance of tidying it up by operation of the rule that is about to pass into law.

  What more can be said if, after the explanation, the Commission’s course of interpretation is no more predictable than before?  Under the rule, an ad may include “indicia  of express advocacy” (references to candidates, elections or voting), or it might not: either way, it might be exempt or it might not.  The FEC will make what it can of the content, keeping “external” factors more or less out of sight, and it will then judge, “on balance”, whether the ad has a reasonable interpretation other than as a call to support or oppose a particular candidate. 

   This seems to be a case of much being permitted because so little is clearly prohibited—with the emphasis here on how little is clear.   A reader might leave the E&J in a state more of confusion of enlightenment.  Rick Hasen thinks this will keep lawyers busy, and it may, but lawyers paid to give clients clear, dependable advice will not have an easy time of it, and they may react to this rule with less elation than Hasen might imagine.

   The world invited into being by the WRTL rule may be, in certain ways, unsatisfying to all visitors: for those committed to aggressive enforcement of the corporate and union spending prohibition, dark times lie ahead, but there may also be unease in the ranks of the law’s skeptics, since the FEC is now a hall monitor administering justice more by the gut than by the book.  Hasen may have a point when he implies that the winners are the constitutional litigators taking a brief rest before they once more test the rules and re-engage the courts.

   In the meantime, some questions are answered.  As indicated by the final rule, when first approved without exegesis, candidates who are not officeholders are fair game for exempt corporate-paid criticism.  Corporations can finance ads intended to influence candidates’ positions in anticipation or on the possibility of their election.  And for challengers and incumbents, the material of the ad can be rough stuff. 

   One of the examples the FEC provides is that of an ad, castigating an incumbent candidate for environmental policy shortcomings, that does not qualify as “issue advertising”, in the terms provided for by the rule, but is nonetheless exempt—i.e. payable with corporate funds—because it still can be read reasonably as other than an exhortation to support or oppose the candidate.  This is an instance where the FEC concludes that the candidate’s character or fitness for office has been attacked: “the…statement [that the candidate] voted for particular environmental bills supported by corporations who gave [him] contributions is an attack on his character or fitness for office.”  (38).  Such an attack is one of the “indicia express advocacy”, and, therefore, the “safe harbor” for grassroots lobbying is unavailable. The ad still makes the grade as an exempt ad, because, under the more general test for exemption, environmental regulation is a “public policy matter”; the public is urged to call the Congressman and complain; and, if there is a doubt, the FEC is bound by WRTL to resolve it in the interests of speech, balancing all factors as best it can. 

   The FEC evidently concluded that responsible administration  and enforcement of the law made it necessary or very important to have a rule.  It succeeded in this endeavor, achieving a bipartisan compromise that, to carry the day, had to satisfy the demand among a number of Commissioners for more deregulation than the Court in WRTL ordered up.  The FEC tried to improve on what the Court did by, in effect, completing its thought.

   The completed thought seems not very clear.  The adopted standards guarantee, too, that it will never truly be completed.

Bob  Bauer