Two campaign finance reform groups are representing a Democratic Member of Congress in a lawsuit filed in federal court against the Federal Election Commission (“FEC”). The lawsuit is an Administrative Procedures Act challenge – not a constitutional challenge – to the electioneering communications reporting requirements that were amended by the FEC in the wake of the United States Supreme Court decision in Wisconsin Right to Life v. FEC (“WRTL“). In WRTL, the Supreme Court narrowed the application of the corporate and union ban on financing electioneering communications to advertisements that are susceptible of no other reasonable interpretation than an appeal to vote for or against a federal candidate. An electioneering communcation is a television or radio advertisement that references a federal candidate with 30 days of the candidate’s primary election or 60 days of the general election.
Ironically, the current disclosure rules for electioneering communications (“EC”) came about because of an amendment offered by a Democratic FEC Commissioner, not because Republican FEC Commissioners are not enforcing the law as erroneously alleged by many campaign finance reform groups. Here is a copy of the amendment offered by the Democratic FEC Commissioner at the FEC December 14, 2007 open meeting. This amendment limited the scope of the EC reporting requirements for nonprofits to donors who “made donations for the purpose of furthering ECs.” This amendment recognized that many nonprofits contain donations or membership dues from folks who support the general purposes of the organization, and not necessarily the ECs. Thus, the EC reporting rules do not require the disclosure of every individual or organization contributing to the organization. The amendment was approved by a vote of 5-0, with Commissioners Lenhard (D), Mason (R), von Spakovsky (R), Weintraub (D), and Walther (I) voting in the affirmative. Commissioners Weintraub and Walther still serve on the FEC.
This lawsuit is simply another assault being waged by the campaign finance reform groups in an effort to silence the critics of the Obama administration and Congressional Democrats. It’s a political maneuver that is designed to rig the rules of the game in favor of the Democrats by seeking to intimidate the business community while leaving the Democratic party’s labor union allies undisturbed.