Sunlight Foundation Reporting Group

When is a political ad not a campaign ad? Federal judge decides for FEC

The murky rules around electioneering ads may have gotten slightly less unclear this week, but not thanks to the Federal Election Commission.

A federal judge issued an opinion Thursday that appears to give the green light to a Virginia-based conservative nonprofit based called the Hispanic Leadership Fund to run some controversial ads that seem to be aimed at criticizing President Obama without disclosing the spending (or donors) to the Federal Election Commission.

Judge T.S. Ellis III ruled that some of the five ads that stymied the FEC back in June  are "electioneering" -- a term of art for ads that subtly (or not so subtly) tout or denigrate a candidate for office without directly calling for his election or defeat. 

The ruling comes after a strange hearing two weeks ago before Ellis. Before that hearing, three Republican FEC commissioners issued statements saying they disagreed with the FEC’s position on the case.

Ellis decided that the Hispanic Leadership Fund can air two of the ads without reporting to the FEC: 

• One, featuring President Obama’s voice and and criticizing the oil policies of “the government.” Ellis ruled that was not considered an “unambiguous reference” to the president because there is not evidence that the average viewer would recognize his voice. At a contentious FEC hearing on the subject in June, Democratic Commissioner Ellen Weintraub played audio recordings of past presidents in an attempt illustrate that Americans are familiar with their voices.
• Another ad featuring a voiceover of the White House press secretary is not electioneering, Ellis said, because the mere mention of the White House is not a clear reference to its current occupant. The ad asks viewers to call the White House to “tell the government it’s time for an American energy plan…that actually works for America.” 

But three other ads were ruled to count as electioneering. One mentions the current “administration’s” policy on foreign oil and another its healthcare policy, specifically asking viewers to call Health and Human Services Secretary Kathleen Sebelius. In another, the judge ruled that mention of the “parent” of health care reform is clearly a reference to President Obama.

Ellis said he decided to issue a ruling because HLF faces a “credible threat of prosecution” if the group broadcasts the advertisements without reporting them to the FEC. If a third party were to complain to the FEC about the ads, the judge reasoned, and the FEC declined to take up the matter because of the commission's chronic partisan gridlock, that non-decision could be challenged in district court.

“Although the FEC rightly points out that HLF’s speech is only chilled by HLF’s decision not to disclose, the Supreme Court has repeatedly emphasized that disclosure itself is a burden on political speech and political association rights,” Ellis wrote, citing the Supreme Court’s Citizens United. "Thus, HLF has alleged is sufficient hardship to render this matter ripe for adjudication.”