The Center for Competitive Politics, hoping to expand the protections afforded issue advertising by WRTL II, has chosen Ohio for the next field of battle and reporting requirements are its primary target.  Ohio’s law also subjects the advertising to source restrictions, within thirty days of an election, but CCP has the fresh club of WRTL II to bat these away, on behalf of Ohio Right to Life.  The reporting issues represent the true frontier here, and CCP has picked its fight carefully.

     Ohio’s reporting requirements for any person making broadcast "electioneering communications"—what CCP would have treated as "pure independent issue advocacy" (Compl. at 7)—apply over an extensive period of time.  Ohio requires reporting of electioneering communications as soon as these exceed in the aggregate $10,000 in advertising naming a specific candidate, and the reporting obligation is made effective from the inception of the candidacy until the 30th day prior to the primary or general election (after which these expenditures are treated and reported as campaign-related expenditures or independent expenditures).  The reports following the first one must be filed on a weekly basis for each week that these expenditures exceed one dollar.  O.R.C. § 3517.1011 (A) (6)-(7), (D).

     CCP seems to have carefully avoided alleging that no reporting requirement for these communications is constitutionally permissible.  Its complaint stresses that the Ohio requirements are especially "onerous" (Compl. at 6), "extraordinary and unnecessarily burdensome" (id. at 9), and "a more intrusive reporting requirement" than applicable to political committees (id. at 8.)

     As CCP is presenting its case, victory over disclosure—over this particular disclosure requirement—will not necessarily prevent the legislature from fashioning a defensible disclosure regime.  In fact, as an alternative claim for relief, CCP seeks a "narrowing construction" (id. at 15) that "limits the onerous regulatory burden of disclosure…to a reasonable level" (id. at 16).  But, for CCP, it is a start to draw any line against any disclosure requirement applied to these types of ads.

     Before the FEC, a failed attempt was made to find in WRTL II the basis for invalidating the compelled disclosure of protected issue advocacy.  WRTL II did not support this further step; McConnell stood against it, with eight justices having supported a reporting requirement for electioneering communications.  The FEC was certainly the wrong forum for a change in course, and it rightly declined to write the reporting rules out of the law.

     It is interesting that organizations committed to attacking these kinds of reporting requirements tend to underplay this aspect of their platform.  Jim Bopp, hardly retiring, soft-pedaled the point before the FEC, tucking it quietly into the alternative rule he advocated that the Commission adopt in implementing WRTL II.   Rick Hasen notes that the website advisory posted by CCP on its Ohio action does not trumpet, indeed does not even mention, the reporting claim, in sharp contrast to the email notification he previously received.  It is yet another indication of the wide acceptance of disclosure that CCP, like Bopp before it, is not loudly advertising this part of its program. 

     CCP has chosen instead to say that it is simply asking that the law, the new constitutional law of WRTL II, be followed.  Its advisory, the final official version, states that that the "Ohio state law barring it from running advertisements mentioning candidates' names close to an election is impermissible in the wake of the Supreme Court's decision last summer in Federal Election Commission v. Wisconsin Right to Life (WRTL)."   No news there.  The additional claim against reporting is more whispered than shouted, framed with care in its Complaint but omitted from its public relations initiative, and CCP argues that it is resisting disclosure only in its most extreme "invasive" or "onerous" form.

     So CCP has not quite launched a full-scale offensive on disclosure in the new Ohio case.  If it wins, however, it will have won more than a skirmish, and more than it will, apparently, publicly admit.

Bob Bauer   

UPDATE:  Mike Schrimpf of the CCP provides the following clarification:

"FYI: We have two media releases on our website (and have had both up since yesterday afternoon). One is aimed at Ohio media and the other is aimed at the DC press.
 
http://www.campaignfreedom.org/news_center/newsID.54/news_detail.asp
 
Admittedly, the front page - our blog - only has the Ohio based release."