The Federal Election Commission (FEC) approved a final rule exempting some issue-related broadcasts from the electioneering communications rule. The old rule banned corporations — including nonprofits — and unions from paying for such ads within 60 days of a federal general election or 30 days of a primary, if the ads referred to a federal candidate. The new rule is the FEC's response to the U.S. Supreme Court's decision in the FEC v. Wisconsin Right to Life case, which struck down the ban as applied to grassroots lobbying. The new rule does not provide a specific standard. Instead, there is a safe harbor for some grassroots lobbying broadcasts, and the rest of the rule lists criteria for the FEC to decide if a communication is allowable on a case-by-case basis. It also requires donor disclosure for these non-electoral messages. The new rule, which will be Section 114.15 of the Code of Federal Regulations, starts with the general statement that corporations and labor organizations may broadcast electioneering communications if they are "susceptible of no reasonable interpretation other than as an appeal to vote for or against a clearly identified federal candidate." The rule sets up the FEC to do the interpretation on a case-by-case basis by listing "Rules of Interpretation" for all communications that do not fall within a limited safe harbor. The safe harbor allows broadcasts to refer to federal candidates within the 30/60-day blackout period if:

• There is no mention of "any election, candidacy, political party, opposing candidate, or voting by the general public";
• It takes no position on a federal candidate's character or fitness for office; and
• It "focuses on a legislative, executive, or judicial matter" and asks the candidate to take a certain position or includes a call to action to the public to contact the candidate about the issue.

The safe harbor also allows commercial advertising that does not address the election. The safe harbor does not include a requirement that the candidate be an officeholder in a position to make a decision relating to the action. The safe harbor's requirement of a call to action on an issue excludes broadcasts that may be simple announcements of events, cable access shows and other communications. The FEC will determine if these are permissible by considering "whether the communication includes any indicia of express advocacy and whether the communication has an interpretation other than as an appeal to vote for or against a clearly identified Federal candidate." Indicia of express advocacy are communications that mention elections, political parties, voting, opposing candidates, candidacy or take a position relating to a candidate's character or fitness for office. If the content of the broadcast focuses on a public policy issue and has a call to action or proposes a commercial transaction, it may be considered as something other than an appeal to vote for or against a candidate (e.g., grassroots lobbying). The rule says the FEC will only consider the content of the communication and "basic background information," and "any doubt will be resolved in favor of permitting the communication." The rule says the FEC website will list examples "derived from prior Commission or judicial actions." This overall approach could eventually develop the same kinds of problems charities and religious organizations are experiencing with the vagueness of the Internal Revenue Service's (IRS) "facts and circumstances" standard for enforcing the tax code's ban on partisan intervention in elections. Donor Disclosure The FEC left existing disclosure requirements in place for exempted broadcasts, so that any nonprofit that pays for a grassroots lobbying ad running in the 30/60 day period will have to file a report with the name and address of each donor giving $1,000 or more during the calendar year, if a donation "was made for the purpose of furthering electioneering communications." This will create practical difficulties for nonprofits, since it is not always possible to anticipate when or if a grassroots lobbying ad will be necessary. It also appears to be inconsistent with Congress' decision earlier this year to reject proposals for grassroots lobbying disclosure under the Lobbying Disclosure Act. The week before its Nov. 20 meeting, the FEC published the General Counsel's draft final rule, which was significantly different than the rule proposed for public comment, dropping the safe harbor approach and only providing general guidance. Just prior to the meeting, Chairman Robert Lenhard proposed an alternative that included a safe harbor. The proposal was adopted after an amendment offered by Commissioner Ellen Weintraub, making clear that the FEC will consider the ad's content and whether the ad contains "indicia of express advocacy."