FEC Deadlocks on Disclosure for Ads Targeting ‘White House’

Photograph by Jessica Ebelhar-Pool/Getty Images

President Barack Obama at Sempra U.S. Gas & Power’s Copper Mountain Solar complex in Boulder City, Nevada.

Campaign reformers claimed a major victory when federal courts ruled this spring in a case spearheaded by Rep. Chris Van Hollen (D-Md.) that shadowy groups sponsoring political ads known as “electioneering communications” had to disclose their donors.

Since then, however, sponsors have continued to run ads and keep their funding sources secret as they look for ways around the court rulings.

In the latest round of a seemingly endless fight over disclosure, a conservative group that is one of the top political ad sponsors may file its own court case after a deadlocked Federal Election Commission vote on an advisory opinion request. The GOP-leaning American Future Fund wants protection from having to reveal who is paying for planned ads in the fall presidential campaign targeting “the White House” and “the administration” over energy policy, abortion and health care.

The group claims that these ads — plus another that would use an audio clip of President Obama’s voice — do not refer to a “clearly identified candidate” and thus are exempt from reporting rules. The FEC’s three Republicans agreed with the American Future Fund and the three FEC Democrats did not. The FEC Democrats agreed with comments by filed reform groups and the Obama campaign stating that the American Future Fund ads are obvious attacks on a clearly indentified candidate — Obama. But the FEC Republicans said the ads were not covered under the strict terms of the agency reporting rules.

After the FEC tie vote failed to offer protection for the group’s ads, an attorney for the American Future Fund, Jason Torchinsky, said “it’s an option” for his client to go to federal court to seek an order declaring that its proposed advertising campaign would not be subject to disclosure requirements. Torchinsky indicated that any legal action would have to occur soon because reporting requirements for electioneering communications in the general election campaign are due to take effect in early August.

The FEC’s electioneering communications rules cover targeted radio or TV ads referring to a federal candidate in the period 30 days before a convention of a primary election or 60 days before the general election. Ad sponsors must file reports to the FEC disclosing how much is being spent on each message, and other details. Under the recent court rulings in the Van Hollen case, sponsors must also report who is donating $1,000 or more to pay for the ads — a requirement that sparked renewed interest in the electioneering communication rules and spurred new efforts to avoid disclosure by groups, like the American Future Fund, that have never previously revealed where their money comes from.

In the past, electioneering communications — also known as “issue ads” — have been used widely by those seeking to sway public opinion about candidates without revealing who is paying for their messages. Since the Van Hollen rulings, the American Future Fund and other groups have been able to continue sponsoring millions of dollars worth of TV ads without filing FEC reports, avoiding disclosure through such tactics as placing ads only in states where the primary election has concluded and time window for reporting has closed. That will not be so easy, however, when the nationwide reporting window opens this summer for ads referring to presidential candidates. According to the FEC, electioneering ads that refer to Obama are set to be subject to reporting requirements nationwide beginning Aug. 7. That date is 30 days before the Democratic National Convention is expected to formally nominate the president for re-election. The disclosure requirements will last through the Nov. 6 general election date.

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