Many political groups spending millions of dollars on candidate-centered television ads in this year’s campaign want to keep their donors secret.
But they face a dilemma due to recent court rulings that require disclosure of those funding “electioneering communications.”
Campaign finance law defines electioneering communications as TV or radio ads that praise or attack a candidate in the final weeks before an election but stop short of asking for votes. Often known as “issue ads,” these messages have become commonplace among groups seeking to sway public opinion about candidates without letting voters know who is funding their efforts.
Now, a conservative group called the American Future Fund is looking to the Federal Election Commission for relief.
The group is asking the FEC to rule that it can run ads criticizing “the administration” or “the White House” without revealing its donors. The request argues that disclosure requirements for an ad attacking a “clearly identified candidate” do not apply if the ad doesn’t use President Obama’s name or title.
Obama’s re-election campaign has weighed into the fight by filing a comment letter demanding that the FEC reject the American Future Fund’s request. The conservative group “knows fully well who it wants to talk about, and knows fully well whom it would be understood to be ‘referring’ to,” said the letter from Robert Bauer, Obama’s top campaign lawyer and former White House counsel. “It is, of course, President Obama.”
The six FEC commissioners — equally divided among Democrats and Republicans — are expected to vote on the American Future Fund advisory opinion request in early June.
However, the federal district court in Washington, D.C. ruled in a case brought by Democratic Representative Christopher Van Hollen of Maryland that the FEC must enforce requirements that all donors paying at least $1,000 to finance electioneering communications be publicly reported. The district court ruling is under appeal, but the D.C. Circuit federal appeals court denied a request to block disclosure requirements while the appeal is pending. That means donors funding electioneering communications must be disclosed until the fall campaign and perhaps beyond.
Even if the FEC declines to grant the political groups relief, there may be other ways around the court rulings. For example, the U.S. Chamber of Commerce, which plans to spend up to $50 million on political ads this year, recently indicated it will simply stop sponsoring electioneering communications. Instead, the Chamber indicated it will sponsor ads that directly advocate for the election or defeat of candidates. This type of message was unaffected by the recent court decisions. Paradoxically, such direct campaign ads now face less disclosure than the old issue ads.
Kenneth P. Doyle reports for the BNA Money & Politics Report