FEC Issues Draft for Ads, Slight Differences as to What Constitutes Electioneering
by Amanda Adams*, 10/22/2008
The Federal Election Commission (FEC) issued a draft advisory opinion (AO 2008-15) with a ruling on radio ads sponsored by the National Right to Life Committee (NRLC). NRLC sought out how the FEC would view the ads under the FEC's "electioneering communications" rules. The FEC draft deals with two, nearly identical ads.
Both NRLC ads end by calling on Obama to apologize; "Will Obama now apologize for calling us liars when we were the ones telling the truth?" The second commercial then adds a last line saying, "Barack Obama: a candidate whose word you can't believe in."
The draft concludes that the first proposed ad does not contain express advocacy while, the second ad does. Therefore, with the second ad, the NRLC may not use general treasury funds to finance it. The draft said both ads contain "some indicia of express advocacy by raising questions about Senator Obama's character." The first ad however, "could reasonably be interpreted as an appeal for Obama to apologize to the NRLC rather than an appeal to vote against Senator Obama."
The last line of the second ad crossed the line into express advocacy. The draft states that because the second ad references Obama as a candidate, it "significantly alters the tone of the advertisement, focusing it as much on Senator Obama's bid for the presidency as his actions as a State legislator. Additionally, the advertisement manipulates Senator Obama's campaign slogan — 'Change we can believe in' - to attack his character and call into question his trustworthiness as 'a candidate whose word you can't believe in.'"
The advisory opinion will be considered at the FEC's next meeting on Oct. 23, along with the advisory opinion for VoterVoter.com. The votes of at least four commissioners are needed to approve a final ruling.
Update: A second draft was released which states that neither of the ads constitute impermissible electioneering.
