
OMB Watch Files Petition for Electioneering Communication Rulemaking
by Guest Blogger, 2/22/2006
On Feb. 16, OMB Watch joined numerous other groups, including the AFL-CIO, Alliance for Justice, and U.S. Chamber of Commerce, in filing a Petition for Rulemaking with the Federal Election Commission (FEC), asking the FEC to exempt legitimate grassroots communications from "electioneering communication" prohibitions.
The petition is in response to the Supreme Court's ruling in Wisconsin Right to Life, Inc. v. FEC. The Court upheld the right of advocacy groups to seek protection for legitimate issue advertising and noted that the FEC had the statutory authority to craft a rule to protect certain ads. In the Court's decision, they upheld the right of advocacy groups to seek protection for legitimate issue advertising.
Jan Baran, attorney for the U.S. Chamber of Commerce noted, "Everybody who read the action of the Supreme Court was struck by their reference to the [Federal Election] Commission's power to make exceptions under the law. We saw that as a signal to the FEC and the regulated community to see whether or not an exception can be made through rulemaking instead of repeated litigation."
Currently, the electioneering communications provision, under the Bipartisan Campaign Reform Act of 2002 (BCRA), bars any ad that mentions a federal candidate broadcast within 30 days of a primary election or within 60 days of a general election. The FEC had initially exempted organizations under Section 501(c)(3) of the tax code from the "electioneering communications rule" due to their nonpartisan nature. (Ads sponsored by such groups cannot support or oppose a candidate for elected office. Thus, such ads would have to be issue ads, supporting or opposing policy options.)
The FEC withdrew the exemption in December 2005 after a federal court found its justification for the exemption inadequate. The FEC rule bars general references to federal candidates, so that a grassroots broadcast message during the banned period asking people to "call your Senator" to support or oppose legislation violates the rule, according to the court.
Under federal campaign finance laws, if the petition succeeds, the FEC will issue a Notice of Availability, inviting comment on the merits of this proposed rulemaking. The coalition asked the FEC to issue a rulemaking on an expedited basis in light of the November elections.
