The FEC meeting this morning ended as it began: with no grassroots lobbying exemption, no formal rulemaking established to develop one, and one party sharply distinguished from the other in their view of the cost of inaction.  The Republicans supported an interim rule, providing for immediate exemption but with a "sunset" provision that would terminate it by next year.  The Democrats opposed this.  Then the Republicans asked for the institution of a formal rulemaking.  The Democrats opposed this, too.  After some discussion about what due procedure would and would not allow, the Republicans moved to "authorize" the General Counsel to prepare a Notice of Proposed Rulemaking, with approval and publication in the Federal Register only on a separate vote on December 1, 2006.  Democrats voted en bloc to defeat this proposal.  A Notice of Disposition was then approved, drawing the dissent of Commissioner von Spakovsky, and it provides that the agency has, for the time being, more pressing tasks to address but that it may return to the question at a later date. 

     This was the day's work, except that there was also some argument, which is well worth examining.

      Because the Republicans did not carry the day, their arguments count for less, in this instance, than those of their Democratic colleagues.  They were prepared to take action, on an interim or more formal and extended basis, and their reasoning did not depart from that which Commissioner von Spakovsky relied on in proposing his version of the exemption.  It was some part policy and some part politics (in the broadest sense): the statute confers on the Commission the authority to promulgate a rule, the Supreme Court has pointedly noted its absence, and a bipartisan consensus among activitists has developed in favor of action now, this year.  The rule could be built with adequate safeguards and observed in practice, and it could not be carried over into the next election cycle without affirmative action.

     The Democrats, their case primarily carried by Commissioner Weintraub, objected on both procedural and substantive grounds.  Commissioner Weintraub registered her sympathy for grassroots activists; she stated that the question had been a struggle for her and that she wished that the question was an easier one but has concluded that it is not.  Process questions have troubled her.  The FEC is engaged in ongoing litigation with some prospect, she believed, of clarifying the issue; and on this point, she was joined by Commissioner Walther.  A formal rulemaking was not the answer, either, since the FEC did not have before it a formal Notice to consider and on which to vote.  She also objected to any auithorization to the General Counsel to produce such a proposal, suggesting that this was not regular order and that it committed her in some fashion, but not to any clear direction, on the issue. 

     On substance, the Democratic arguments against the exemption were widely varied in number and nature.  They were roughly as follows:

      1.  No One Really Understands What PASO ("promote, attack, support, or oppose") Means.  On this view, PASO would not therefore function well as intended to guard against "sham" ads.  Commmissioner Weintraub maintains that its meaning may be clearer to "seasoned political professionals," who have access to lawyers, but not to grassroots activities wherever they may be found. 

      To which the answer may be (1) that the "seasoned political professionals" are usually the ones we worry about when we worry about circumvention; and (2) that if political professionals understand what PASO means, then someone does, and the FEC can presumably achieve a clear understanding of its own.

      2.  Effective PASO May Be Unachievable.  Commissioner Weintraub questions whether it is possible to ever arrive at an acceptable definition, since any advertisement referring to an officeholder must portray him or her, by association one way or the other with an issue, in some light and with some effect on voter opinion. In any event, whatever may be an effective treatment of PASO, it is not one accepted by all Commissioners, some of whom may have only a "sense" all their own of the issue. 

      To which the answer may be that while the Supreme Court must have been mistaken in believing that PASO was understandable by those of "ordinary intelligence," there is such a standard.  We must therefore persevere in the belief that it is understandable, particularly inasmuch as the FEC has held state candidates and parties, among others, to this understanding under current rules. 

     3.  Regulatory Exemptions Should be Used Sparingly.  Commissioner Weintraub cited the sponsors of BCRA (Congressman Shays, in particular) for the proposition that any exemption adopted for this purpose must excuse only speech "wholly unrelated to elections," and the agency's authority to adopt an exemption was necessarily limited. 

    To which the answer may be that this Shays rhetoric is of dubious authority, and it cannot alter the fact of Congress' decision to confer precisely this authority, on this agency, on this issue. Congress understood, and the Supreme Court has recently acknowledged, that there are communications of this nature "wholly unrelated to elections" for purposes of this statute.  And the FEC's discretion is indeed limited, by the requirement that any exemption must be conditioned on PASO, but this simply returns us to the beginning of the argument and fails to advance it. 

     4.  The Electioneering Communication Provision Works Well as a Bright Line Test.  Commissioner Weintraub seemed concern that an exemption, perhaps one imperfectly or inadequately drawn, would subvert the demonstrated success of the electioneering communication provision.  She said that it was successfully "self-enforcing"--at least so far, without the exemption. 

     To which the answer may be that it "works," as designed, too well, because it sweeps up within its prohibition speech that Congress cannot--and knows that it cannot--regulate.  The purpose of the exemption is, at heart, to have the law work well, but only where its operation is constitutionally justified.

     5.  The Courts Can Help with a Ruling in Pending Cases.  Commissioner Weintraub argued that the courts could produce a ruling, in Wisconsin Right to Life or Christian Civic League of Maine that would provide some guidance to the FEC, easing its burden in assembling the right rule.

     To which the answer may be that the courts may or may not produce this guidance, and that it is, in any event, the FEC's exercise of its expert regulatory judgment that is at issue. 

     6.  In the Meantime, Those Wishing to Conduct Otherwise Prohibited Pre-election Grassroots Lobbying Activities Can Establish a Political Action Committee and Fund Them in That Way. This was a point stressed by Commissioner Walther, who emphasized also that the restrictions only apply to broadcast media, and then only within the 30- and 60-day pre-election periods if the communications refer to a clearly identified candidate.

     To which the answer may be that significant tax complications can attend the establishment of PACs for this and not for an electoral purpose; and that many organizations establishing a PAC will have, under the solicitation rules, a weak supply of persons whom they can solicit for contributions. This is an offer of regulated speech to replace free speech: a PAC is an approved government entity, operating under close regulatory supervision and subject to a wide range of requirements having no relationship to a purpose of lobbying officials on issues.  And while it is true that the pre-election advertising restrictions are narrow in other ways, such as in applying only to broadcast media or affecting only references to candidates, it is the wish to make use of just these media for communications with precisely these references that has prompted the plea for an exemption.

      When it was over, it ended more or less decisively, with no relief in sight.  Commissioner Toner did make a point of saying that, by the terms of the Notice of Disposition, the FEC had at least laid claim to its authority to create an exemption.  This much was settled: that the authority exists.  It remains unused, for the reasons stated by the Democrats whose votes today ended the bipartisan consensus.  

Bob Bauer