FEC Rulings Coming

Will Determine Fate of Interest Group TV Ads

Posted September 7, 2004 at 6:15pm

With fewer than 60 days left until Election Day, the Federal Election Commission is slated to proffer more official advice this week to outside groups on how far they can go with advertising that contains images of federal candidates.

Citizens United, a conservative nonprofit issue ad group run by GOP activist David Bossie, has asked the watchdog agency whether his organization may advertise both a documentary film and a book about Democratic presidential candidate John Kerry over the next several weeks without running afoul of campaign finance laws.

The conservative-leaning Ripon Society, meanwhile, wants to know if it can air advertisements featuring Rep. Sue Kelly (R-N.Y.) both inside and outside her Hudson Valley district.

In the proposed ad, according to a script, the Republican lawmaker lauds her GOP colleagues for their handling of terrorism issues.

Top agency lawyers in the FEC general counsel’s office have suggested that both groups’ communications, under particular circumstances, would be considered “electioneering communications” and therefore subject to certain restrictions or prohibitions under the law.

No advice from the FEC will be deemed as final until the agency’s six commissioners discuss and approve the so-called advisory opinions at an open meeting on Thursday.

A draft opinion written by FEC lawyers suggests that Citizen United’s proposed ads for a film chronicling the lives and careers of Kerry and his vice presidential running mate John Edwards — as well as the ads for a book by David Bossie titled ‘The Many Faces of John Kerry, Why This Massachusetts Liberal is Wrong for America” — would constitute electioneering communications.

Such broadcasts are strictly regulated under the Bipartisan Campaign Reform Act of 2002 and, as such, they may not be funded with corporate or labor money and are subject to detailed disclosure requirements.

Because Citizens United is incorporated, the FEC’s lawyers rejected its plan to advertise the book or documentary featuring images of Kerry within 60 days of Election Day. The agency has suggested, however, that the group may engage in the “same type of production and promotional activity in which it has historically engaged” — such as advertising in print media, on the Internet and by direct mail.

In July, Bossie had filed a complaint with the FEC alleging that Michael Moore and others involved with the production and distribution of “Fahrenheit 9/11” would be violating the law’s electioneering communications prohibitions by advertising the documentary film.

FEC lawyers also rejected Bossie’s claim that his group should qualify for a media exemption under the law and noted that Citizens United “has produced only two documentaries since its founding in 1988, both of which it marketed primarily through direct mail and print advertising, and neither of which it paid to broadcast on television.”

With regard to the Kelly matter, FEC attorneys have concluded that the Ripon Society may not run ads in the Congresswoman’s New York district this summer and fall to promote the importance of financial counterterrorism measures because the ads would meet all the requirements to be considered electioneering communications.

The group should be allowed to run the commercials elsewhere in the country, though, the FEC General Counsel reasoned.

In the proposed ad, Kelly lauds Republicans in Congress who “are working for bipartisan solution to the challenges we face,” according to a script provided to the FEC by The Ripon Society, a 501(c)(4) that promotes moderate policy agenda with an emphasis on policy debate within GOP circles.

“We’re creating new tools to detect and sever the financial lifelines that support terrorist cells,” Kelly continues, according to the script. “Shutting down the bankrolls of an enemy that hides in the shadows will do a lot to help make our country safer. We need to do more, and we will.”

The FEC’s legal counsel found no problem with a reference in the ad to “Republicans in Congress,” which it stated was ambiguous enough not to be referring to any particular federal candidate.

The draft advisory opinion cautions the Ripon Society, however, that the use of that term, coupled with other facts about the proposed distribution of its ad, could trigger prohibitions in the law that prevent coordination of communications between political parties and outside groups.

Regardless of the advice of its top lawyers, the bipartisan agency’s six commissioners will have a final say on both matters, however, when they consider these and several other advisory opinion requests at their public meeting Thursday afternoon.