FEC WEIGHS CARVEOUTS IN REGULATING ‘ELECTIONEERING COMMUNICATIONS’

Federal Election Commission held hearing Wed. on its rulemaking that would create carveouts from regulation of what Chmn. David Mason (R) called “a new term” -- “electioneering communications” -- despite fact that underlying law, Bipartisan Campaign Reform Act (BCRA) of 2002, is undergoing multiple court challenges. Under BCRA, any electioneering communication on broadcast, cable or satellite airing within 30 days of primary or 60 days of general election for federal office would have to meet strict rules. Any funder of such communication that spent more than $10,000 annually on such communications would need to disclose communication within 24 hours, and corporations and labor groups would be prevented from funding such communications during that window. Guidelines were inserted, according to BCRA’s authors -- Senate Commerce Committee Chmn. McCain (R-Ariz.) and Sen. Feingold (D-Wis.), Reps. Shays (R-Conn.) and Meehan (D-Mass.), and the electioneering communications authors, Sens. Snowe (R-Me.) and Jeffords (I- Vt.) -- to provide U.S. courts with bright line test to ensure law wasn’t overturned on First Amendment grounds. Hanging over FEC hearing, however, was very real possibility that BCRA rulemakings would in part or in whole be rendered moot by courts. FEC is expected to approve final rules on electioneering communications by Sept. 26.

“We are well aware, as is the Commission, that the constitutionality of these provisions is being challenged,” McCain and other sponsors wrote FEC Fri.: “In fact, we are working with the Commission to defend the statute in court.” But at least one witness Wed. was skeptical of lawmakers’ chance of success. “Everybody knows there are some problems here,” said Donald McGahn of National Republican Congressional Committee. “The court is going to carve this up.” Under BCRA, liability rests with funder of advertising, but disclosure burdens fall on broadcasters and other distributors of content, which must collect information from funders and forward it to FCC. Rulemaking doesn’t have time deadline that stations would be under to file, but it probably would be more timely than other materials they file with FCC.

Several commissioners expressed concern about suppression of speech in periods prior to elections, with Comr. Bradley Smith (R) rejecting term “blackout” for speech limitation used by some BCRA opponents but saying “I prefer to think of it as a brownout.” FEC is considering several exemptions for electioneering communications, including PSAs, grass-roots lobbying efforts, etc. Michael Malbin of Campaign Finance Institute, who participated in Task Force on Disclosure in 2000, said that group found several concerns about defining what was electioneering communication, suggesting Jay Leno monologues or Comedy Central programs could fall under definition, and as they were corporate- funded would then be illegal. Campaign & Media Legal Center’s Glen Shor -- who once worked for Meehan -- suggested Leno could fall under media exemption already in law. FEC Vice-Chmn. Karl Sandstrom (D) was skeptical, however, saying exemption language referred to “bonafide news accounts… as part of regular coverage of elections.” Among other hypotheticals Sandstrom raised: (1) Photo of President Bush appearing in background of CIA show The Agency, which could be seen as promoting Bush. (2) Ad for Dana Carvey’s film The Master of Disguise, which showed Carvey impersonating Bush. Malbin responded to those examples by saying “we're not going to have perfect surgical clarity.”

Malbin advocated limiting term electioneering communications to paid advertising, position rejected by Shor. One dispute was over PSAs, with Shor suggesting politicians could use PSAs, funded by nonprofits and thus permitted in 30- and 60-day windows, to promote themselves. Comr. Michael Toner (R) responded that if former N.Y.C. Mayor Rudolph Giuliani had remained in 2000 Senate race, he wouldn’t have been permitted to do PSA after Sept. 11 urging donations to nonprofits for terrorist victims.

Comr. Scott Thomas (D) said FEC must provide leeway for grass-roots lobbying. “We need to allow organizations to use all legitimate means to do lobbying,” he said. Shor backed calls by McCain and others to crack down on “sham” issue ads, where nonprofit runs ad ostensibly to lobby for or against bill or issue, but uses ad to attack or promote certain candidate. McGahn cited Tauzin-Dingell as example of how difficult it would be for FEC to distinguish “sham” ad from real issue ad. He referred to ads opposing bill that ran in “a huge national campaign.” “That ad attacks legislation. To say if you run that ad in Mr. Dingell’s district it somehow attacks Mr. Dingell, that’s absurd… I could write an ad that attacks Mr. Dingell.” Thomas said such issue ads “are probably the toughest of the ideas we have to contemplate.”

There also was confusion on paid broadcast time for 30- or 60-min. shows. Malbin said it was clear that Ross Perot- type block of time should be regulated. But Mason raised example of Pat Robertson and 700 Club, show that might be bought at same time every week in local market. Malbin acknowledged that if show was part of TV station’s regular lineup, even if it was purchased air time, repetition might make it exempt, even if Robertson was candidate for federal office. However, given fact that Malbin hadn’t thought of that hypothetical before, he said: “I'm winging it.”

FEC excluded regulation of Internet in its proposed rulemaking, and at hearing commissioners showed no inclination to modify that position. FEC’s Smith said “I believe the statute cannot be written to include the Internet,” and in fact it makes no mention of Internet. Yet McCain, Feingold, Snowe, Jeffords, Shays and Meehan wrote that FEC should “leave open the possibility, however, of including communications that are, or may be in the future, the functional equivalent of radio and television broadcasts.” They noted possibility of Webcast’s being simulcast with broadcast: “A per se exemption for communications using ’the Internet’ from the definition of electioneering communication is therefore not appropriate.” However, they said “some Internet communications, such as private e-mail communications or conventional websites should clearly not be considered electioneering communications.”

FEC also is proposing excluding from regulation low- power FM, low-power TV and Citizen’s Band radio. That exemption came under fire from some commenters. Campaign & Legal Media Center said there was no need for carveout, as regulations applied only to communications reaching 50,000 or more people, unlikely with those niche technologies. Similar argument was made by Common Cause and Democracy 21, which said statute used term “any” before broadcast, cable and satellite. McCain and the other BCRA authors also urged FEC not to create low-power carveout.

FEC is calling on FCC to create online database of all of electioneering communications disclosures submitted to it by TV stations. FCC would have responsibility for compiling and posting information, according to FEC rulemaking, at which point FEC would link its site to FCC’s site. Malbin said special software would need to be distributed to any body disclosing electioneering communications to expedite that disclosure and make it easier for FCC to consolidate data.

There was some question as to how exactly FEC would enforce electioneering communications statute. “I don’t think we have the statutory authority to punish anyone for violating this provision,” Sandstrom said. He said only legal penalty in statute was perjury, something FEC didn’t have authority to prosecute. He suggested Congress might need to draft technical amendment to give FEC some way to enforce provision.