By Craig Robinson
A lawsuit filed by the Hispanic Leadership Fund with the U.S. District Court in the Southern District of Iowa seeks to force the Federal Election Commission (FEC) to definitively rule on whether generic references to the government fall under electioneering communication regulations.
The lawsuit stems from a request made by the Iowa based American Future Fund (AFF) to the FEC to determine if generic phrases like “the administration,” or “the government,” or “the White House, ” or “government run healthcare,” or “Obamacare, or “Romneycare” clearly identify a federal candidate running for office.
AFF sought guidance from the FEC in the spring of this year on eight different potential advertisements that included the phrases listed above. The FEC did rule the use of the terms “Obamacare” and “Romneycare” were subject to electioneering communication regulations since both directly refer to a federal candidate running for office. The FEC also ruled that an advertisement that calls on viewers to contact a government official, such as the Secretary of Health and Human Services Kathleen Sibelius, did not fall under electioneering regulations, but was instead an issue advocacy advertisement.
If the FEC had determined that certain terms clearly identified a federal candidate, then AFF, or any other group using the term, would have to adhere to electioneering laws and regulations, which means that the groups would have to disclose contributions and contributors to the organization. Groups like AFF and Karl Rove’s Crossroads GPS avoid electioneering communications because they prefer not to have to file detailed reports, and this allows the organizations to maintain the privacy of its donors.
Since the FEC failed to reach a consensus in the matter of the terms “the administration”, “the government,” “the White House,” or “government run healthcare,” a gray area in the law now exists. The FEC also failed to determine if audio of the President or any other elected official could be used in an advertisement so long as it does not disclose the name of the voice.
The inability of the FEC to rule on the matter has caused one group, the Hispanic Leadership Fund, to take the FEC to court to clarify the matter since any organization that uses the terms could be subject to an investigation or forced to disclose the names of donors that they promised never to disclose.
The Hispanic Leadership Fund contends that since none of its proposed ads clearly identify candidates, the ads don’t constitute electioneering communications.
McCain-Feingold defined an electioneering communication as, “Any broadcast, cable, or satellite communication which refers to a clearly identified candidate for federal office; is made within 60 days before a general, special, or runoff election for the office sought by the candidate; or 30 days before a primary or preference election, or a convention or caucus of a political party that has authority to nominate a candidate, for the office sought by the candidate; and in the case of a communication which refers to a candidate for an office other than President or Vice President, is targeted to the relevant electorate.”
The clearly identified language used in McCain-Feingold is the same language that has been on the books since the Federal Election Campaign Act of 1971.
Of course liberal groups and candidates are opposed to groups such as the American Future Fund and the Hispanic Leadership Fund that wish to run ads that use these generic terms. In fact, the Obama for America campaign has claimed that any reference to “the government” is a direct reference to President Obama. That means the court action sought by the Hispanic Leadership Fund is justified because surely the Obama campaign will file a complaint and demand the disclosure of all contributors to an organization if they disapprove of its message.
Since the DNC and RNC national conventions are considered to be primaries, Saturday marks the beginning of the 30-day primary window, which means that time is of the essence to settle the matter. Judge John A. Jarvey, a Bush nominee, will hear the case in Des Moines. Matt Dummermuth, a former U.S. Attorney for the Northern District of Iowa who is now the firm of Whitaker Hagenow & Gustoff, is the attorney for the Hispanic Leadership Fund.
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