BNA Money & Politics Reports published an article discussing the Solicitor General’s filing opposing Real Truth About Obama, Inc.’s (“RTAO”) petition for certiorari with the United States Supreme Court in Real Truth About Obama, Inc. v. Federal Election Commission. According to BNA, the Solicitor General defended the Federal Election Commission’s (“FEC”) alternate definition of express advocacy at 11 CFR 100.22(b) and political committee status enforcement policies by arguing that an organization with a major purpose of federal campaign activity should be required to comply with the contribution limits and disclosure requirements applicable to political action committees.
I intend to review the government’s filing at a later date and will offer commentary on the arguments contained in the brief. Initially, it is important to note that 100.22(b) has been held constitutionally infirm by at numerous lower federal courts. In addition, the FEC’s political committee status enforcement policies suffered a material set back in the Emily’s List v. FEC case where the D.C. Circuit held that specific FEC regulations violated the First Amendment’s free speech guarantees.