Electioneering Communictions Proposed Regulations

The Federal Election Commission has issued a Notice of Proposed Rulemaking (NPRM) to change the regulations regarding electioneering communications.

The Commission is considering a couple of different alternatives, but the only viable alternative is one that eliminiates all communications that promote, attack, support, or oppose (PASO--the FEC's acronym--not mine) a federal candidate.

Under BCRA, Congress defined an elecitoneering communication as any broadcast, cable, or satellite communication which refers to a clearly indentified federal candidate withing 30 days of a primary or 60 days of a general election and is targeted to the relevant electorate. See 2 USC 434(f)(3)(A).

One of the concerns of the FEC in this rulemaking are whether or not to apply these electioneering communication rules to 501(c)(3) organizations--charities. The FEC wonders whether applying the rules woudl be confusing to charities and impact their ability to perform their charitable missions. The FEC goes through a very long argument about this matter because their original regulations, according to a court decision did not cover these issues enough.

Here is an opportunity for the FEC to say, "we have enough regulation of speech, we don't need to make more." According to the NPRM, "The Commission is also considering exempting from the "electioneering communication" definition all communcations that do not PASO a federal candidate. This is the right course of action. The whole purpose of campaign finance regulation is to prevent the corruption or appearance of corruption of candidates and the electoral process. Any communication that is designed to impact the election of a federal candidate falls within the contemplation of the rules, any communcation that does not intend impact election does not fall into the purview of the FEC. End of story.

The plain language of the statute creates all the exemption necessary--the media exemption, exemptions for debates and their promotion and exemption for other regulated activities such as independent or coordinated expenditures. In short, what other exemptions are necessary? All this concern about charitable communications that might be subjectively interpreted as a PASO detracts from the real point, that all of these communications are protected speech. The fewer regulations the better.

I am planning on submitting comments to the FEC on this one, so more on the subject later.