Expert: Court enforces law when Federal Election Commission can’t


Last week a federal judge stepped in to decide when a political ad is a campaign ad, meaning it has to be reported to the Federal Election Commission, as Sunlight wrote on Friday.

The case was brought by a conservative, Virginia-based nonprofit that wants to run five political ads that appear to be aimed at criticizing President Obama without disclosing them to the FEC. The group, the Hispanic Leadership Fund, sued the FEC after the commissioners, beset by partisan gridlock, could not decide whether the ads were so called electioneering communications—a term of art meaning the ads have to be reported to the agency.

The judge's decision, which ruled that some of the ads would have to be disclosed, marked a sharp contrast to the inaction of the FEC, Columbia Law School professor Richard Briffault said.

"It is striking that in three of five cases [the court] was willing to take a pragmatic, realistic sense of what constitutes a campaign ad, even when three of the six commissioners on the FEC probably would not,” according to Briffault, a campaign finance expert.

Briffault praised the decision. Critics of campaign finance regulation have taken a such a “narrow, literalistic approach” to the regulation, he said. The problem with that view, for him, is “you can't write a regulation that covers every single possible case." 

"The judge is enforcing the regulation for the FEC when they can't manage to do it," Briffault said. 

Jason Torchinsky, representing the Hispanic Leadership Fund, argued that an ad must mention terms like “president” or the “incumbent” to be a campaign ad, which are terms written in the regulation, while “White House” is not.

But in the judge’s view, using the term “White House,” in the way the proposed ad does, "can only reasonably refer" to President Obama and so counts as a campaign ad.

Still, the nonprofit sees the decision as a victory for two reasons, Torchinsky said.

That the judge made the decision to issue a ruling in the first place was a win for his client. Judge T.S. Ellis, of the Eastern District of Virginia, said that the Hispanic Leadership Fund has "standing" in court because the nonprofit faces a credible threat of prosecution if it runs the ads without reporting them. At the hearing, the FEC urged the judge not to issue a decision because the group did not face a complaint.

Second, the judge ruled that two of the five ads are not electioneering communications, although the group hasn’t decided whether it would run these ads before election day, Torchinsky said. He also said the group is still evaluating whether it will appeal any part of the opinion.

The FEC declined to comment on the ruling, said spokesperson Judith Ingram.