As a coalition yesterday petitioned the FEC to institute a rulemaking on "grassroots lobbying," three of the key "sponsors" of BCRA—Messrs. McCain, Shays and Meehan—moved to intervene in the lower court proceeding in Wisconsin Right to Life. They wish to assist in the defense of the government, against WRTL’s pursuit of an exemption of this kind—at least as applied to the specific ads before the court.  Democracy 21 advises its readers that the sponsors reject a "broad" exemption, but it is not clear whether this means any grassroots lobbying exemption, because by its nature such an exemption is somehow too "broad," or just the one needed to cover the WRTL ads.  It is hard to see how the sponsors could be arguing the first case: WRTL won that point before the Supreme Court, which is why there comes to be a lower court proceeding at all.

     And not too long ago, before the FEC, the sponsors (Mr. Feingold included) urged the FEC to craft an exemption for a certain type of grassroots lobbying.  See letter to Ms. Mai T. Dinh from Senators McCain, Feingold, Snowe and Jeffords, and Congressmen Shays and Meehan, August 23, 2002 (Re: Notice 2002-13) at 10.  A month later, a Commissioner entirely sympathetic to the sponsors’ vision of BCRA, Scott Thomas, formally proposed an alternative much like theirs:  he stated that "I believe that we should adopt an exception to the ‘electioneering communication’ defined for certain grass roots lobbying ads."  Commissioner Thomas was confident that "we can describe ads that fall outside the 'promote, support, attack, or oppose’ test'."  Memorandum from Scott E. Thomas (Sept. 25, 2002) at 1.  In recent weeks, in the wake of WRTL, no less a thunderous reform advocate than the New York Times concurred that an appropriate test for bona fide grassroots lobbying was manageable.  "A Threat to Campaign Finance Law, New York Times (Jan. 25, 2006).

     The FEC has the clear authority to work with the broad consensus—that there is an achievable standard—and to promulgate a rule with the benefit of comments from all interested parties.  In the first round of rulemaking, the FEC could not agree on any one of the alternative proposals, but this is no good reason not to renew the effort, especially in the wake of WRTL.  The Petition filed yesterday seeks to open this process, and it suggests an approach—a set of governing principles—that, among its other virtues, overlaps with some of those advocated by Commissioner Thomas and others whose fidelity to the law—whose abhorrence of "gutting"— cannot be questioned.  This is a good beginning.  [Note: this firm represents OMB Watch, a member of the coalition that filed the petition now before the agency].

     It is puzzling that Rick Hasen, in a first (and one hopes, not the last) reaction to this effort, characterizes it as essentially "a way to gut the existing laws which prevent the use of corporate and union money to pay for election-related broadcast advertising before elections."  See here.  A petition to the FEC, proposing that it exercise clear, conceded authority to promulgate a rule, is hardly a gutting.  Some may disagree with some or all of the principles that the coalition proposes, or may wish them combined in some ways but not others, or would have them formulated differently.  All of these views will be invited and considered in public comments.  This a lawful and orderly way to go about doing what most participants in the debate—including the authors of the law—have at one time or another believed to be useful or necessary or both. 

     So, to answer Rick's call to action with another: "Call Rick Hasen.  And say 'no!' to any gutting of this rulemaking:  tell him that you would welcome his considered and constructive—but ONLY a considered and constructive—contribution to this effort to protect the right to engage in real grassroots lobbying." 

Bob Bauer