The Federal Election Commission will today consider a question raised  by the Virginia Democratic Party about the proposed distribution of literature under a statutory exemption for “slate cards” and other “printed listings” of candidates.

     So what, you ask?

     This is an example of a question that is both “technical” and consequential: the outcome, though few will notice, will matter for parties but also for the sensible, sustainable development of the law.  So anyone caring about the quality of the rules, however little they may care about parties, should pay attention to what the Commission does. 

     The regulatory exemption allows for these listings of no less than three candidates to escape party spending limits: the parties can pay for the material and not bump up against ceilings on what they can spend.  11 C.F.R. § 100.80.

     There are conditions:  the listings can contain limited amounts of information, such as identify of the candidates and their party affiliation, but not an “excess amount” of biographical material, and in no event statements of candidate positions or the party platform.  A listing this expansive in its “campaigning” loses the exemption and triggers limits on how the party can spend for the benefit of the listed candidate.  FEC Advisory Opinion 1978-89 (January 16, 1979).  Moreover the listings must be printed:  broadcasts, direct and mail and other forms of “public political advertising” do not qualify.

     Odd, but true.  But Virginia’s Democrats are not challenging these limitations.  They are asking whether additional restrictions apply to the manner of presentation and distribution. 

     Presentation:  they would like to add imagery, a little dash and color, and additional photos of the candidates. 

     Distribution:  they would like, in the door to door distribution of these printed listings, to know what their employees, paid for the task, can say—both when asked and more generally in the course of conversation with the voters.  For example, even if the information on the listing is limited, can the canvasser add more during voter contact?

     Now before the Commission is a draft Opinion that concludes that the  form of presentation is an issue and that the manner of distribution is  impermissible.   So, under this draft:

1. The presentation can be colorful, but it cannot include “multiple informal candidate photographs” and it cannot favor one candidate by more prominent photographic display.  The problem is that the latter case is described as the “overuse of candidate photographs”.  Draft AO at 7. This would make of the “listing” something more like “campaign material,” id. at 6-7, and the exemption would be lost. 

2. The distribution, if made by paid employees, is also laden with potential for liability if the employee is too voluble in conversation with voters along the distribution route. The employee must “limit the verbal message delivered with the slate card,” id. at 9, unless the portion of the cost assigned to distribution is paid within limits—not within the exemption. Without limits on what they may say, the canvassers could cheat on the exemption by expressing more, orally, than the listing may contain in writing.

     The result is strange, the reasoning not much less peculiar. The exemption applies explicitly to distribution as well as to production; and to the extent that the Congress was concerned about the subversive effect of certain distributions, which transgress the limits on “campaigning,” these were specifically identified:  broadcast advertising under the exemption is not allowed.  By standard canons of construction, the distributions not disallowed are authorized. 

     The draft concludes otherwise, worrying about “circumvention.”  McConnell ushered in an era of fresh anxiety about circumvention.  But this was a fear specific to the context, which was the abuse of soft money, and the slate cards proposed by the Virginia Democratic Party will be paid with hard, federally qualified funds. The rule for “slate cards” requires that this source of funding for federal candidates’ share of any listing.

     This is not a “soft” money case.  It is about providing information to the voters under an exemption that clearly authorizes it in this printed form.  The proposed listing would be colorful, presented with additional photos; and this seems like smart work by the party, entirely to the benefit of the voters whom the party is trying to reach. 

     And if the canvassers engage the voters with more speech about the candidates on the listing—if there is more said about positions or philosophy or even biographical material in “excess”—this seems like healthy politics. 

     But it could be go the other way, as the circulated draft now does.

     “Circumvention” will not long be with us, if this is how it is applied in a hard money case, involving door to door dialogue with the voters, and when nothing in the rule compels the agency to arrive at a bizarre and unproductive result.

 
Bob Bauer         

Note: The firm associated with this site filed the Advisory Request at issue here, on  behalf of the Democratic Party of Virginia.