Today would not be too early, even if by a day, to give thanks that the FEC has finished its WRTL rule.  Another day may have generated another alternative draft grafted onto the last one; one compromise would be compromised further into the next and the rule, when fully and thoroughly compromised, might have posed insurmountable interpretative difficulties.  Now we have a final rule, and the FEC produced one which, in key respects, such as the retention of the disclosure requirements, was the best of the choices before it. 

     In the last post yesterday, an explanation of the rule was offered, but it might not have done justice to its uncertainties.  It is true, as seasoned observers have said, that this rule is one large question mark to which the Commission, in particular cases, will have to supply the answer.  The rule provides for a "safe harbor" for some "issue ads":  but not for all, and in those other cases, the FEC must "consider" different factors in arriving at a "determination" that, "on balance," the ad is protected and can air.  Under this rule, not all issue ads are the same, and the difference is left to the FEC to decide, one by one.

     The FEC’s job has not been easy, and Rick Hasen is right that the agency can’t be faulted too much on these details when the basic design is the Supreme Court’s.  Others could say that the fault lies deeper, in McCain-Feingold, which put into the law an improbable prohibition with poor prospects for survival over the long term.  WRTL dealt this provision of the law a blow; the FEC rule props it up, but not on a firm foundation.  Congress once had in mind a sweeping ban, admitting few exceptions, and now, after WRTL, the ban has been weakened into a rule requiring the agency to make case by case "determinations" on "issue ads" under indefinite standards.

     Indeed the rule is not primarily built to supply firm standards to guide the regulated community, since "issue ads" can permissibly run with all manner of content, including electoral content (albeit outside the "safe harbor").  It really describes, very generally, how the FEC will approach the making of its decisions on any such ad.  In other words, it gives more of a feel for the decision-making process than for what a set of concrete standards would produce when applied in a particular case.  This is the consequence of going beyond WRTL in a hurry, and trying to construct two tiers of issue ad regulation, one for "safe harbor" ads and one for ads outside the safe harbor. 

     But the FEC evidently did the best it could and produced a rule.  Nothing, not argument nor poetry, could help the FEC much in this work, hard as it was.  Not much will help here to give a clear picture of the rule or its effect over time on the issue advertising industry.  But it is worth a try:

 If you wish to make an ad
 Because the Feds have made you mad,
 And you must make your objection
 In the weeks before elections;
 And if the job cannot be done
 Without the use of corporate funds,
 Then begin by being schooled
 In what’s allowed by federal rule.
 You can speak with care-free ardor
 If you dock in a "safe harbor":
 Show modest care with what you say—
 Avoid "candidate," "Election Day,"
 And speak of positions you’re proposing
 But not of candidates you’re opposing,
 Speak not of parties nor of voting,
 And good heavens, no "Swift Boating"!--
 You’d be positively witless
 To smear character or fitness,
 Or to risk a violation
 By attacking qualification.
 No, issues must be your focus,
 (Issues real and issues bogus),
 And have opinion with a mission,
 Urging a particular position.
 Now if NOT in this safe harbor
 Staying safe is somewhat harder:
 What you say is not a sure bet
 To be what the U.S. will interpret.
 You can slip in "candidate" or "party,"
 Or speak to fitness if feeling hardy,
 But the ad is not acceptable
 If found to be "susceptible"
 Of no reasonable interpretation
 Except as electoral declaration.
 So stay focused on an issue,
 Urging pols and public to stand with you,
 And the FEC will "consider" how you said it,
 How your audience reasonably read it.
 For the FEC’s great challenge
 Is to "determine" if, "on balance,"
 The ad—judged by tone and text and feel—
 Must be read as a candidate appeal.
 This decision made "on balance"
 Will reward the strongest writing talents:
 But it’s probably worth the labor,
 Since doubts are resolved, all, in your  favor.
 Warning: whether safely in or out of port,
 You owe the government a report
 On who it was who paid the freight
 For a pre-election ad neither for, nor against, a
                      candidate.

Bob Bauer