April 23, 2009

A Huge Development in FEC 527 Enforcement?

The FEC, without a press release, recently posted this letter (see also here) in regards to a complaint filed by Democracy 21 and the Campaign Legal Center against the Lantern Project (MUR 5854). The Lantern Project ran ads that were critical of Rick Santorum, then running for U.S. Senate reelection, but that did not contain express advocacy. For example, one ad said: "From privatizing Social Security to cutting student loans for the middle class, when Rick Santorum has to choose between siding with George Bush or middle class Pennsylvanians, Santorum supports Bush. What is he thinking?" The group's mission statement said its purpose was to "shine the light on Rick Santorum's extreme positions, failed policies and hypocritical statements -- and let the facts speak for themselves."

Though the FEC agrees the ads are critical of Santorum, and arguably at least one of them attacked his character or fitness for office, they did not constitute an expenditure because they neither contain express advocacy nor do they meet a WRTL-type test for the functional equivalent of express advocacy. [UPDATE: The vote on this matter was 4-1, with Walther dissenting, and Weintraub recused.]

If this is going to be the standard for what 527s can do in the next election without running into the danger of being classified as a political committee, I expect the next few elections will see a great growth in this activity. I think this ruling will take a lot of fear away from potential 527 donors in the next election.

Interestingly, Perkins Coie represented the Lantern Project, but Bob Bauer (of the firm) during the 2008 campaign was critical of a pro-Clinton 527 during the 2008 primary season relying on a similar interpretation of FEC activity. (If this last sentence doesn't prompt Bob to come back to blogging I'll be disappointed.) Bob's view that there would be a "day of reckoning" for givers to pro-Clinton 527s does not seem likely at this point.

One would think a ruling as significant as this would have merited a press release from the FEC. Thanks to a careful reader of the FEC website for passing this along.

Posted by Rick Hasen at April 23, 2009 08:09 AM