When is an advertisement an election ad?

The FEC considered that question Thursday at a hearing, and despite a lot of partisan disagreement, came up with one definitive answer: An ad that uses the term "Obamacare," an initially derogatory term for describing President Obama's 2010 health care law that Democrats have since tried to reclaim, qualifies.

At issue is how to categorize thinly veiled attack ads that don't directly call for the election or defeat of a named candidate. It's a question of intense interest to groups planning to run political ads this summer and fall but seeking to keep their donors private, as well as to reformers trying to maximize disclosure of election ads. If the FEC rules that an ad is an electioneering communication, the amount of the buy would have to be reported. Donors to the organization that bought the ad would likely be revealed too.

A conservative group called American Future Fund (AFF) made an advisory opinion request to the FEC in an effort to avoid dislosing its donors. The request was prompted by Van Hollen v. the FEC, a recent court ruling that says groups making electioneering commununications must provide names of donors. Up until the Van Hollen ruling, the FEC required organizations making electioneering communications to reveal donors' names only if the donors specifically earmarked money for a particular advertisement — something that seldom, if ever, happens.

Electioneering communications are defined by the FEC as TV or radio ads that clearly identify a candidate, are aired close to an election, are targeted at a specific electorate, and cross a certain spending threshold. But a decade after the term was first defined in the Bipartisan Campaign Reform Act, the commissioners can't agree on what exactly it means in practice. 

AFF presented potential ads to the FEC that would criticize President Obama's policies but instead of naming him, would use the term "administration" or "White House" or use the president's voice. Other ads would mention Obamacare, a politically-charged term that has been used almost exclusively by Republicans, according to Sunlight's Capitol Words, a tool that tracks the usage and frequency of words and phrases in Congress. The graphic above illustrates the usage of "Obamacare" since it first surfaced in the congressional lexicon in the summer of 2009. The red line represents use by Republican lawmakers; the blue, Democrats. According to Capitol Words, the Republican who uses the term most often is Rep. Steve King, R-Iowa, one of the president's most vocal critics. Sen. John McCain, R-Ariz., Obama's 2008 rival for the White House, also makes the top 10.

The AFF also proposed ads using Romneycare for the Massachusetts health care law that GOP presidential candidate Mitt Romney signed when he was governor. 

In the end, the FEC got enough votes to say that ads mentioning Romneycare and Obamacare are electioneering communications. GOP Commissioner Matthew Petersen voted with the three Democrats. But the commissioners deadlocked on almost all the other ads. That meant that AFF may sue the FEC, asking a court to rule that its ads are not electioneering communucations, said the group's lawyer, Jason Torchinsky. AFF would have to act quickly: Electioneering ads have to be reported to the Federal Election Commission when they are aired close to a convention. The reporting window for the ads AFF is considering — if the FEC rules them electioneering ads — would begin in early August, 30 days before the Democratic National Convention. 

The tone of the hearing was at times tense, theatrical and nasty, highlighted by partisan bickering that occasionally flares up between Democratic Commissioner Ellen Weintraub and GOP Commissioner Donald McGahn.

Weintraub spoke about how the Supreme Court has time and again said disclosure is important to inform voters. 

"The notion that you could actually use somebody's own voice—their own voice—and claim that you are allowed to criticize them…and you don't have to identify who you are…you want to hide behind some shield, some ambigious name like American Future Fund…that certainly is not demonstrating civic courage," Weintraub said.

"The voice of the president is so clearly recognizable to the citizens of this country," she added. She then played recordings of famous lines delivered by Presidents Franklin Delano Roosevelt, John F. Kennedy and Ronald Reagan.

McGahn responded with sarcastic applause. He then then acted astonished that a federal official would refer to former presidents as "dead guys" — as Weintraub casually styled them in her presentation — noting that it was "almost eight years to the day after President Reagan passed away."

The GOP commissioner characterized Weintraub's argument as a "know it when you see it" standard. In contrast, his view is that legislators envisioned the law as an objective, "bright line" standard. He referenced the statute, which says that to qualify as an election ad means the "candidate's name, nickname, photograph or drawing appears, or the identity of the candidate is otherwise apparent through an unambiguous reference."

Another Democratic commissioner, Cynthia Bauerly, disagreed. She said that, in her mind, in the ads presented before the FEC in this specific request, the "White House" refers to a clearly identified candidate.