Free Speech Coalition, Inc. and Free Speech Defense and Education Fund, Inc. Comments on the FEC’s Proposed Regulations on Electioneering Communications (72 Fr 50261)

Michael Harless Administrative Law, Election Law

Today, we filed comments with the Federal Election Commission (“FEC”) on behalf of Free Speech Coalition and Free Speech Defense and Education Fund (“FSC/FSDEF”) regarding the FEC’s proposed rulemaking in response to the U.S. Supreme Court’s June 25, 2007 decision in FEC v. Wisconsin Right to Life (WRTL II).  That decision upheld WRTL’s unrestricted right to publish issue ads during pre‑election periods, so long as it did not engage in “express advocacy or its functional equivalent.”

The FEC proposed two approaches to revise its rules to attempt to satisfy the Court’s decision.  The comments strongly opposed both approaches because neither protects the free speech rights of issue advocacy groups.  Either approach would increase, not decrease, the continued the FEC editorial control of the speech and press rights of advocacy groups by using either the time proximity or the context of issue ads to determine if election advocacy had occurred.  The minor definitional changes proposed fell far short of a practical means to avoid the FEC role of national censor of political speech during the most important seasons of national debate.

Instead, the comments urged the to FEC promulgate a new, narrowly‑tailored definition of “express advocacy and its functional equivalent” consistent with WRTL II and clarify that the FEC’s reporting and disclosure requirements extend no further than that narrow definition.

Link to comments