By David M. Silverman
In recent days we have seen political action committees (PACs) claiming they are “prohibited” from running political ads in primary states due to “new rules” regarding “electioneering communications.” As explained below, these claims are incorrect. What they are really doing is trying to avoid the need to reveal the identity of their contributors, following a US District Court decision in March.
Under Federal Election law, an “electioneering communication” is a broadcast, cable or satellite communication that refers to a clearly identified candidate for federal office within 30 days of a primary or 60 days of an election, targeted to 50,000 or more people in the state or district the candidate seeks to represent. For President and Vice Presidential candidates, an “electioneering communication” is one that can be received by 50,000 or more people within 30 days of a state primary or the nominating convention.
By federal statute, sponsors of “electioneering communications” must disclose the names and addresses of each donor who contributed $1000 or more to the sponsoring organization. This is is the provision that led to the US District Court decision at issue.
The Federal Election Commission (FEC) enacted a rule requiring disclosure of donors whose donation was made “for the purpose of furthering electioneering communications.” Maryland Rep. Chris Van Hollen challenged this rule on grounds that it created a loophole in the law. According to Van Hollen, fewer than 10% of the contributors to electioneering communications in 2010 were disclosed to the FEC.
The US District Court agreed with Van Hollen, holding that the statute requires disclosure of ALL contributors of $1000 or more to organizations placing “electioneering communications,” even if the contributions were not made for the specific purpose of funding the electioneering communication. The number of contributors that would need to be disclosed under this ruling could be quite high, particularly since the US Supreme Court allowed corporations and unions to fund independent electioneering communications in its landmark 2009 Citizens United case discussed here.
So, while some PACs erroneously claim they are “prohibited” from running electioneering communications due to a recent “FCC” ruling, the truth is that they do not want to subject themselves to the broad disclosure requirements established in the Van Hollen case. The case is on appeal to the DC Circuit, so we should soon know whether the FEC or the US District Court was right in their respective interpretations of the disclosure statute.
In the meantime, “electioneering communications” can be avoided by not referring to a specific candidate, by avoiding states where primaries are to occur within 30 days or by communicating the message to fewer than 50,000 people. While these ads will still be considered “independent expenditures” that have their own FEC reporting requirements, they are not nearly as burdensome as those recently imposed by the court on “electioneering communications.”