Big Business and Big Labor Want FEC to Create Exemption from Disclosure For Many Ads that Are Likely to Influence the 2008 Presidential Elections

I've already noted that the James Madison Center (who represented plaintiff in the WRTL case) has taken the position that the FEC should exempt from disclosure ads entitled to the "as applied" FEC exemption. Richard Briffault and I have taken a contrary position, arguing that the FEC regulations should apply only to whether corporations and unions may use their treasury funds to pay for such ads.

Now, while perusing this page containing all the comments on the rulemaking submitted to the FEC, I see that Chamber of Commerce, AFL-CIO/AFSCME/SEIU, and National Association of Realtors have taken the same unfortunate position on disclosure as the James Madison Center.
UPDATE: See Bob Bauer and the BNA Money and Politics Report ($). The latter quotes FEC Commissioner Mason as follows: "The FEC commissioners, meanwhile, indicated that their toughest task could be figuring out just which ads are covered by any type of campaign finance rules. These rules could address both disclosure and possible continued funding restrictions for ads that are determined to relate solely to elections. The main problem is that the Court's plurality opinion, written by Chief Justice John Roberts 'is just not a bright-line test,' said Mason, the FEC vice chairman."

I certainly agree that Roberts principal (not plurality) opinion is difficult to interpret at the edges. I have just posted an updated version on SSRN of Beyond Incoherence: The Roberts Court's Deregulatory Turn in FEC v. Wisconsin Right to Life, 92 Minnesota Law Review (forthcoming April 2008).

Posted by Rick Hasen at October 4, 2007 03:21 PM