FEC Deadlocks On Attempted Evasion of Disclosure Laws


The Federal Election Commission (FEC) was unable to agree that ads proposed by the 501(c)(4) group American Future Fund (AFF), using recordings of President Obama’s voice and the phrases “the White House” and “the Administration,” refer to a “clearly identified candidate” and therefore constitute “electioneering communication” subject to disclosure laws requiring the group to reveal its funders.  The FEC deadlocked on 5 of 8 proposed advertisements submitted in AFF’s Advisory Opinion Request (AOR 2012-19).

“Electioneering communication” is a broadcast ad within a defined pre-election time frame that “refers to a clearly identified candidate for Federal office.”  An FEC regulation defines the phrase “refers to a clearly identified candidate” to mean: “[T]he candidate’s name, nickname, photograph, or drawing appears, or the identity of the candidate is otherwise apparent through an unambiguous reference. . . .”

Referring to the FEC deadlock, Paul S. Ryan, Campaign Legal Center Senior Counsel said: “The FEC should have responded to this question from AFF in much the same way that Washington Nationals rookie phenom Bryce Harper did when he was recently asked an equally preposterous question: ‘That’s a clown question, bro.’” Ryan added:  “AFF is clearly playing games for the sole purpose of hiding their donors from voters.  And the FEC’s three Republican commissioners would be happy to let them get away with it, deliberately undermining laws passed by Congress.”

“The failure of the three Republican commissioners to find that five proposed ads by the American Future Fund are covered by the campaign finance laws is a joke,” said Democracy 21 President Fred Wertheimer.  “The proposed ads by American Future Fund are nothing more than a blatant effort to circumvent the recent federal district court decision that groups that run electioneering communications must to disclose their donors.  The three Republican Commissioners are serving as enablers and trying to help the American Future Fund disregard the campaign finance laws and a federal court decision.”

On May 11, the Campaign Legal Center, together with Democracy 21, filed comments urging the FEC to reject the AFF attempt in its AOR to avoid filing electioneering communications reports and disclosing donors.  AFF had asked the agency whether eight submitted television advertisements would trigger the reporting requirements for electioneering communications.

Seven of AFF’s eight proposed ads identify President Obama without actually using the phrase “President Obama” — instead making repeated references to “the White House,” “the Administration,” or “Obamacare,” displaying images of the White House and in one instance even using a recording of President Obama’s voice.

The three Republican commissioners only broke the deadlock to agree that references to “Obamacare” and “Romneycare” were unambiguous and that identifying a cabinet secretary did not meet the definition.

To read the comments filed by the Legal Center and Democracy 21, click here.