Two weeks ago we posted a video on this blog that illustrates the travails of Free Speech: Why does the Federal Election Commission (FEC) think it has the power to call almost anything that praises or criticizes a candidate “express advocacy” for or against that candidate’s election? How is it that a small group of Wyoming citizens speaking out about various federal political issues must register as a political committee (PAC)? At the close of the video, Walter advises his fellow bowler Donny to not mention President Obama in the bowling league’s political ads to avoid PAC status, and Donny asks rhetorically, “So, what if we talk about Obamacare?”
The line drives home the point that the Supreme Court acknowledged in Buckley v. Valeo nearly four decades ago: “the distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical application. Candidates, especially incumbents, are intimately tied to public issues involving legislative proposals and governmental actions.” In order to avoid vagueness and overbreadth (two First Amendment no-nos), campaign finance laws must be narrowly tailored to address a compelling governmental interest without ensnaring speech that has nothing to do with that interest. But the way the FEC wields its express advocacy determination under the regulation 11 C.F.R. § 100.22(b) these days, it’s anyone’s guess where issue advocacy ends and express advocacy begins. This means that the regulation is unconstitutional.
And just when you thought the point couldn’t get any clearer, the FEC goes and determines that “Obamacare” is, in fact, a reference to President Obama and not a (significantly more accurate and popular) nickname for the Patient Protection and Affordable Care Act.
You can’t make this stuff up.
Last Thursday, at its open meeting the FEC considered an advisory opinion request from the American Future Fund (AFF). Like Free Speech, AFF wants to talk about issues including energy policy, contraception insurance mandates, etc. Unlike Free Speech, they’re not concerned about PAC status and all the compliance costs that go along with that, but about filing “electioneering communication” reports and the costs and burdens that go with those. Here’s a script of one of their proposed ads:
By a vote of 4-2, the FEC Commissioners believe that this is an electioneering communication. There’s a whole lot of legal jargon surrounding “ECs,” as they’re called, but fortunately dear readers I don’t have to go very far to drive home the point of this craziness. According to 11 C.F.R. § 100.29(a): “Electioneering communication means any broadcast, cable, or satellite communication that: (1) Refers to a clearly identified candidate for Federal office….”
And there you have it. If someone were trying to avoid this regulation by saying “His Royal Obamaness,” or even slip in the somewhat popular term “Obamanation” as a slam against the President, then you could see clear identification. But this ad focuses entirely on the effects of Obamacare, and even cites numerous newspapers headlines that refer to the legislation that way. Yes, one may think of Obama when they hear “Obamacare.” No, that does not make the term a reference to him as a clearly identified candidate.
So, perhaps it’s time to modify our video: if “Obamacare” is a clear reference to Obama, then anything criticizing Obamacare must surely be express advocacy against Obama’s re-election. Nonsense, you say? Welcome to campaign finance law.