In the final days before last week’s Colorado Republican U.S. Senate primary, the U.S. Chamber of Commerce spent $250,000 on television advertisements touting its preferred candidate, former lieutenant governor Jane Norton (pictured right).

These ads praised Norton’s conservative credentials and ended with the words, “Tell Jane Norton to keep fighting for Colorado taxpayers,” as the screen highlighted the phone number for her campaign headquarters.

A straightforward message to voters to cast their ballot for Norton rather than Tea Party favorite Ken Buck, who ultimately prevailed, right?

Not according to the Chamber, which reported its ad to the Federal Election Commission as a more general “electioneering communication” rather than an “independent expenditure” that expressly advocated for Norton’s election.

“If the Chamber believed its ad contained express advocacy, it would be reporting the ad as an independent expenditure using Form 5, not as an electioneering communication using Form 9,” Paul Ryan, an attorney with the nonpartisan Campaign Legal Center, told OpenSecrets Blog, referring to the paperwork used to report expenses to the FEC.

“Clearly this ad is designed to get people to vote for Norton. That, in my view, is the only reasonable interpretation of the ad,” Ryan continued. “In what capacity could Norton, a candidate for the U.S. Senate, ‘fight for Colorado taxpayers’ in Washington other than as the senator she’s trying to become?”

J.P. Fielder, a spokesman for the Chamber, was reluctant to discuss the group’s reporting methods.

“The Chamber’s ads in Colorado are considered electioneering communication because they fall within the 30-day window before the state’s primary,” Fielder wrote in an e-mail to OpenSecrets Blog.

Fielder declined to answer numerous follow-up questions about why the advertisement didn’t meet the definition of an independent expenditure. Nor did he explain why the Chamber hadn’t opted to report the ad as an independent expenditure in light of recent federal court decisions that have loosened restrictions on the ways independent expenditures may be funded.

“I’ll be very short because I do agree this conversation is going in circles,” Fielder wrote. “The Chamber is happy to discuss candidates’ policy stances and the substance of our ads, but we do not discuss our political strategies.”

In addition to the Norton ad last week, the Chamber utilized the same reporting methods for advertisements supporting Sen. Blanche Lincoln (D-Ark.) during her heated Democratic primary in April and plugging Republican Scott Brown in January during his U.S. Senate race in Massachusetts.

The Chamber, however, is far from alone in reporting campaign advertisements that seem reasonably explicit in their advocacy as electioneering communications.

Before the Democratic U.S. Senate primary in Arkansas, the labor-backed committee known as Arkansans for Change did the same for its ads opposing Lincoln. And recently, the American Federation of State, County and Municipal Employers (AFSCME) and the National Education Association also each reported as electioneering communications ads praising their preferred candidates.



THE ROLLER COASTER OF BIG MONEY REGULATION

For many years, if an organization wanted to produce advertisements that overtly supported or opposed a federal candidate, they were required to register with the FEC — and accept certain restrictions. These restrictions included not using corporate contributions to fund the ads and relying on limited contributions from individuals and political action committees.

Since January’s Supreme Court ruling in Citizens United v. Federal Election Commission, however, the world of campaign finance regulation has changed dramatically. Landmark legal rulings are making it incredibly easy for groups to legally produce overt political advertisements with none of the previous restrictions.

The Citizens United decision enables corporations, trade associations, unions and other groups to spend unlimited sums from their treasuries on political messages that expressly advocated for or against a candidate. In March, the D.C. Circuit Court built upon that ruling in SpeechNow.org v. FEC and declared that individuals could also give unlimited sums to committees that funded independent expenditures touting or opposing candidates (so long as they didn’t also use the account to make direct donations to candidates).

Finally, late last month, the FEC gave its stamp of approval for the creation of a new breed of political committee — one that could raise unlimited contributions for political advertisements that expressly endorse or oppose a politician — known as independent expenditure-only committees. Groups on the political left and political right have embraced this new vehicle — from the high-profile conservative group American Crossroads to the Florida Is Not For Sale committee, created by a former Hillary Clinton political operative and supporting Democratic Rep. Kendrick Meek’s U.S. Senate bid in Florida.

Regulations governing “electioneering communications” were created by Congress as part of the Bipartisan Campaign Finance Reform Act of 2002. That law is sometimes called the McCain-Feingold Act, after its chief Senate sponsors, John McCain (R-Ariz.) and Russ Feingold (D-Wis.).

The term refers to broadcast, cable or satellite communications that meet certain criteria. The criteria include whether a federal candidate is clearly identified, whether the ad is publicly distributed by a television station, radio station, cable television system or satellite system for a fee and whether the communication is distributed within 60 days prior to a general election or 30 days prior to a primary election to federal office.

People or organizations spending more than $10,000 on electioneering communications must file disclosure statements with the FEC within 24 hours of the date an electioneering communication is publicly distributed.

Independent expenditures, on the other hand, are communications “expressly advocating the election or defeat of a clearly identified candidate.” They also cannot be made “in cooperation, consultation, or concert with, or at the request or suggestion of, a candidate, a candidate’s authorized committee, or their agents, or a political party or its agents,” according to federal statutes.

“Expressly advocating” is further defined as using “magic words” such as “vote for” or “vote against” or whether the ad “could only be interpreted by a reasonable person as containing advocacy of the election or defeat of one or more clearly identified candidate(s).”

The Chamber’s Norton ad in Colorado “wouldn’t qualify as express advocacy because it doesn’t actually state to vote for or vote against a candidate. It says ‘help her’ but it doesn’t say ‘vote for Jane Norton,'” Julia Queen, a spokeswoman for the FEC, told OpenSecrets Blog.

Queen did not address the second prong of the federal government’s express advocacy definition, which deals with a “reasonable person” interpreting a message as containing advocacy for the election or defeat of a candidate.

DIFFICULT FOR WATCHDOGS TO CLARIFY DISCREPANCIES

So with all the confusion about the spirit and letter of the law, what’s a good-government supporter to do?

In 2004, Democracy 21, the Center for Responsive Politics and the Campaign Legal Center brought several complaints before the FEC of political committees running express advocacy advertisements without properly reporting. Ultimately, after a two-year legal battle, these groups were forced to pay $2.4 million in fines for violating the law.

The disagreement about whether ads reported this cycle as an electioneering communications actually advocate explicitly for or against candidates would face a similar uphill battle.

Ryan, of the Washington, D.C.-based Campaign Legal Center, (pictured right) elaborated in an e-mail to OpenSecrets Blog on the difficulties of seeking redress:

“If the Campaign Legal Center had infinite resources, we might file complaints in this area out of principal — to force the FEC to either acknowledge that these groups are breaking the law or to claim to the public that the Commission doesn’t view the ads as candidate ads. But our resources are far from infinite.

“If we did file such a complaint, here’s how it would play out. We’d file a complaint. The FEC would sit on it for two years and then dismiss it. “I can almost assure you that there would not be the necessary four votes among the six commissioners to take action here against the Chamber. The three Republican commissioners have made quite clear their unwillingness to enforce the ‘only reasonable interpretation’ test for express advocacy. Instead, the Republican commissioners will only enforce the “magic words” prong of the two-pronged FEC regulation defining ‘expressly advocating.’ But rather than explicitly admit their unwillingness to enforce their own regulation, they would simply look at the ad and say they interpret the ad as an issue ad, not as a candidate advocacy ad, and that their interpretation is reasonable. End of story. “Then we’d have to go into federal court and sue the FEC and prove to a judge that the FEC’s dismissal of the complaint was arbitrary, capricious and contrary to law. The FEC would argue back that standard the Campaign Legal Center is advocating is an ‘only reasonable interpretation’ test and that some of the commissioners had other interpretations. “Then it’d be up to the judge to decide whether the commissioners’ other interpretations were reasonable — the outcome of which would be largely dependent on the judge — and, as a general matter, judges tend to defer to federal agencies when applying the ‘arbitrary, capricious and contrary to law’ standard. “In short, following through on this matter would be immensely resource intensive and have almost no chance of winning — and even if we won, the fine would be small and would come three or four years after the election when no one cares anymore.”

PITFALLS WITH EXISTING DISCLOSURE RULES

In this environment, the Chamber does give some public accounting of its activities, which watchdogs say is better than no disclosure at all.

“In my view,” Ryan said, “the important thing is that the public gets disclosure — not whether the disclosure occurs on a Form 5 or a Form 9.”

But this disclosure is not without complications.

There are a few notable differences in the rules between using Form 5 for independent expenditures and Form 9 for electioneering communications. The largest difference is the level of transparency and disclosure. The paperwork for electioneering communications is not required to be submitted electronically, making it more difficult to follow the money.

The Form 9 documents for the Chamber’s pro-Norton ad, for instance, were handwritten, and transmitted to the FEC via fax. (The FEC, in turn, made the documents available on its website as a PDF file.)

Had the Chamber reported these ads as independent expenditures using Form 5, it would have been required to electronically file the appropriate campaign finance reports, as presidential candidates and House candidates do.

A provision within the DISCLOSE Act, congressional Democrats’ legislative response to the courts’ high-profile campaign finance rulings this year, would further require the mandatory electronic filing of all electioneering communications exceeding $10,000 at any time.

While the House passed that bill in June, Republicans in the Senate have vigorously opposed it and prevented it from getting a straight up-or-down vote. Senate Democrats, however, plan to resurrect the bill in the coming weeks.

Among the bill’s most vocal opponents? The Chamber, which had its own in-house lobbyists as well as hired guns on K Street lobby on the bill during the second quarter.



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