The Federal Election Commission last week adopted new rules, implementing a relaxation in its rules defining what is considered a prohibited "electioneering communication" by a union or corporation.  This change may allow more political spending by these organizations during the upcoming election campaigns  The rule changes were adopted in response to a Supreme Court case which threw out the FEC’s old rules (see our post on that decision, here).  The old rules had prohibited in the 30 days before a Federal primary or 60 days before a general election the purchase of ads by unions or corporations if they mentioned a candidate in that election.  The Supreme Court found that restriction unconstitutional, where the ad addressed an issue without mentioning the election.  Because of that Supreme Court decision, the FEC was forced to rewrite its rules.

The new rules allow corporate and union expenditures on ads on issues, even if the ads mention a candidate, unless the ad is "susceptible of no other interpretation" other than as urging a vote for or against a particular candidate.  The new rules (Section 114.15) provide a "safe harbor" which allows a union or corporation to conclude that their ad is not prohibited.  If the ad does not mention the upcoming election (or the candidacy of an office holder, or the political party of the candidate or the fact that the public will soon be voting) and does address an issue, where the mention of the candidate comes in connection with a suggestion that the public urge the candidate to support a position on the issue, then the ad will fall within that safe harbor.

The safe harbor seems to provide much room for unions and corporations to purchase advertising time to address their pet issues and convey a message to voters about the candidate’s positions on those issues.  Or, these groups can use "issue" ads to attack a candidate on a particular issue without having to specifically mention the election.  Remember the primaries in 2000, when a group purchased time in New York City during that state’s primary to attack Senator McCain on his environmental record and lessen his appeal to more liberal New Yorkers who, it was feared, might choose to vote for McCain in the Republican primary.  Similar ads could seemingly be run with impunity under these rules ("call Senator McCain and tell him to pass legislation to clean up the environment").  Given the broad language of the new rules, it would appear that unions and corporations could again be active participants in the election process by couching their ads in terms of urging voters to tell a particular candidate to take some action on pending legislation, as long as they don’t mention or otherwise allude to the election itself. 

Of course, the ability to use such ads to attack candidates who don’t currently hold elective office (e.g. many of the current front-runners for the Republican Presidential nomination are former office holders) who might be more difficult to fit under the safe harbor – though, in lieu of urging the voter to contact the candidate on a particular issue, the safe harbor does permit the promotion of a commercial transaction – like the sale of a book or attendance at a movie.  So, a "Swift Boat"-type attack (e.g. "come see the movie that exposes the truth about Senator Kerry’s war record") might pass muster under these rules.

The responsibility for compliance with these rules is that of the groups buying the time – not with the broadcaster.  Broadcasters do have some concerns with potential liability if they have knowledge of any inaccuracy in the ads that could constitute defamation, so broadcasters can probably look forward to arguments about the content of such ads (broadcasters are only insulated from liability for the content of a candidate’s own ads which, by law, they are not allowed to censor).  Otherwise, for broadcasters, the ruling seems to open the door for more demands on their advertising time in what already looks to be a very busy upcoming election year.