The Failure to Enforce Commission Reaches a New Low

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Imagine receiving the following message on your telephone answering machine:

Hello, this is Betty, one of your neighbors.  I’m calling to share some thoughts about voting on May 8th of this year.  Let me tell you, I’m a Republican and my husband John is an Independent, and we agree on one thing--what are we doing sending Congressman McHenry back to Washington?  McHenry is not one of us.  McHenry’s politics and personal life style is going to blow up in our face sooner or later.  Remember DeLay from Texas, Foley from Florida, and Senator Craig from Idaho.  We are also voting for a marriage amendment in May and McHenry is not that kind of Conservative.  McHenry is not one of us. Bye now

Does this robocall expressly advocate the defeat of Congressman McHenry?  More specifically, under the Federal Election Commission’s (FEC) regulatory definition of “expressly advocating,” does the robocall use words, which in context can have no other reasonable meaning than to urge the defeat of Congressman McHenry?  Is it the case that this robocall, when taken as a whole and with limited reference to external events, such as the proximity to the election, could only be interpreted by a reasonable person as containing advocacy of the defeat of Congressman McHenry because the electoral portion of the communication is unmistakable, unambiguous, and suggestive of only one meaning; and because reasonable minds could not differ as to whether it encourages actions to defeat Congressman McHenry or encourages some other kind of action?

Under federal law, a public communication that expressly advocates the election or defeat of a candidate must state in the communication who paid for it, and whoever paid for it is required to file some simple paperwork with the FEC acknowledging that they made the political expenditure.

To be clear, express advocacy robocalls and other public communications (e.g., TV ads, newspaper ads, etc.) are perfectly legal and can even be unlimited under federal campaign finance law—so long as the spender complies with the law’s disclosure and disclaimer requirements.  As the U.S. Supreme Court explained inCitizens United: “The First Amendment protects political speech; and disclosure permits citizens . . . to react to the speech . . . in a proper way.  This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”

I think this robocall message clearly meets the FEC’s definition of “expressly advocating.”  The FEC’s staff thought so too, and recommended that the Commission find “reason to believe” that whoever paid for the robocall violated federal law disclosure and “paid for by” disclaimer requirements.  Such a finding would have triggered an investigation by the FEC’s staff in an effort to determine who was behind the robcall.

Three members of the FEC also thought the robocall expressly advocated the defeat of Congressman McHenry.  Commission Chair Weintraub, Commissioner Walther and former Commissioner Bauerly voted in January to find “reason to believe” federal law had been broken, which would have triggered a full-scale investigation.  Earlier this week, Chair Weintraub published a Statement of Reasons explaining the obvious—“The facts in this case present a clear example of express advocacy.”

However, the FEC’s three Republican Commissioners—Vice Chairman McGahn, and Commissioners Hunter and Petersen—once again blocked an enforcement action by the Commission.  Lacking the requisite four affirmative votes to proceed with an investigation, this matter’s been dismissed.  Voters have been left in the dark, denied the opportunity “to make informed decisions and give proper weight to different speakers and messages” in federal elections, as promised by the Supreme Court.

These three Republican Commissioners have not published a Statement of Reasons explaining how they could possibly conclude that the robocall had a reasonable meaning other than urging the defeat of Congressman McHenry.  I’m sure that if and when they explain themselves, it’ll make for an entertaining read—a world class exhibition of intellectual contortionism.  Or, rather, it’d be entertaining if the price paid for the show was not the integrity and transparency of our electoral process.  But that is the price we’re paying.  American taxpayers are being swindled and it’s time for President Obama to restock the FEC with Commissioners willing to do their job.