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In Wake of Court Ruling, FEC Makes Financing Rule Change Official

The Federal Election Commission has reopened the door for corporations and unions to pay for television commercials during the upcoming presidential and congressional campaigns, so long as the ads avoid expressly advocating for or against a candidate.

The new rules come in response to a recent Supreme Court decision that knocked out a key provision of the landmark 2002 legislation overhauling the nation's campaign finance laws. The law prohibited issue advertising, paid for with corporate or union money, that named a candidate -- 30 days before a primary and 60 days before a general election -- and was considered by its supporters to be one of the bright lines in the act governing the role special interest groups may play in an election.

The new rules are expected to revive the practice by unions and special interest groups of airing ads during a campaign that purport to be about a specific issue, but are in fact intended to sway voters for or away from a particular candidate.

Loyola Law Professor Rick Hasen, who has been closely following debate on the campaign rules, said the new FEC language will provide a safe haven for groups that want to use "sham issue ads" to promote their candidate. In his blog today, he offered these hypothetical examples of advertising messages that he said would now be permitted:
"Call Sen. Clinton and tell her to stop coddling illegal aliens and terrorists by supporting the NY drivers' license plan."
"Call Mitt Romney and tell him more of our soldiers shouldn't die in an unnecessary war in Iraq."
"Call Rudy Giuliani and tell him that his support for gay rights is ruining the moral fabric of this country."

James Bopp, the Indiana attorney who successfully argued before the Supreme Court that the old McCain-Feingold provisions were unconstitutional, said the FEC's changes represented a step forward and a step back.

"I think they made a good faith effort to come up with a definition of the types of communication that were protected by the Supreme Court," Bopp said. His concern, he added, was that he did not exempt groups that run issue ads during a campaign from the need to disclose the identities of those that paid for the ads. That step was considered by the FEC today, but received support from only one of the five commissioners.

Campaign finance lawyer Robert Bauer said that he disagreed with some advocates who believe the FEC decision "means the sky is about to fall in." But he said the new rules have not put an end to the legal wrangling over how far special interest groups can go when running ads during a campaign. The FEC rule was ambiguous, he said, in describing how much "electoral content" could be in an ad. Could an ad explicitly refer to the upcoming election? To the candidate's political party? To the office the candidate is seeking?

"It raises these big question marks," Bauer said. "Which ads that have the electoral material in them could run lawfully?

On this point, longtime campaign finance reform advocate Fred Wertheimer agreed. "The key question now is how this standard will be applied in practice?"

And because of that ambiguity, there will almost certainly be new ads during the 2008 campaign cycle that attempt to test the limits. Asked if he had any clients with plans to push the envelope, Bopp demurred.

"I'm not announcing anything today," he said.

--Matthew Mosk

By Washington Post editors  |  November 20, 2007; 5:58 PM ET
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