The National Journal published a post discussing the pro-regulation groups’ complaints about the revised coordination rules recently adopted by the Federal Election Commission (“FEC”). The article can be found here.
The pro-regulation crowd advocated for the vague and over-inclusive promote, attack, support, or oppose (commonly referred to as the “PASO” standard) as the first test to determine whether an advertisement is subject to regulation and possible prohibition under the FEC’s coordination rules.
The FEC correctly rejected their arguments and adopted the “functional equivalent” of express advocacy standard established by the United States Supreme Court in Wisconsin Right to Life v. FEC. Under this standard, a communication is subject to the coordination rules if it is susceptible of no other reasonable interpretation than an appeal to vote for or against a federal candidate.
The pro-regulation crowd is threatening litigation again because the FEC did not agree with their arguments. Time will tell whether the FEC will be required to defend its new coordination rules in federal court.