Joe Trotter of the Center for Competitive Politics laments in the Washington Examiner about the overly complex web of federal campaign finance laws.
Writing for the U.S. Supreme Court majority in Citizens United v. Federal Election Commission, Justice Anthony Kennedy wrote: “The First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek declaratory rulings before discussing the most salient political issues of our day.”
Unfortunately, campaign finance laws and regulations are now so complex that retaining a practicing campaign finance lawyer doesn’t guarantee you’ll stay on the right side of the law.
For example, the Campaign Legal Center, which supports additional complex disclosure and disclaimer rules, recently published a guide to federal rules for political advertising for TV and radio. The guide, however, only proved that even experts who deal almost exclusively in campaign finance law have trouble conveying and even understanding the rules currently in effect.
CLC wrote that “[Electioneering Communications] are usually funded by PACs, Super PACs, 501(c)(4) social welfare organizations, labor unions, corporations, trade associations or individuals.” They followed up by saying “Within 24 hours of the date of airing the EC, the person or organization making an EC that aggregates more than $10,000 must report to the FEC. An organization must report the name and address of each donor who, since the first day of the preceding calendar year, has donated in the aggregate $1,000 or more to the person making the disbursement.”
Under the law, however, money spent by PACs and Super PACs is exempt from electioneering communications disclosure requirements. In fact, FEC regulations specifically state that PACs and Super PACs ”must report such communications as expenditures or independent expenditures under 11 CFR 104.3 and 104.4, and not under this section.”
This isn’t the only item in which this attempt to distill our campaign finance system into a couple of pages falls short. The campaign finance professionals at CLC write of Independent Expenditures that “Ad sponsors may spend unlimited amounts from any non-foreign source.” But that’s not quite right — and if you followed that advice, you could be an FEC investigation resulting in substantial fines. In fact, not only foreign sources, but also federal contractors and national banks are specifically prohibited from funding independent expenditures. Traditional PACs are limited to accepting $5,000 contributions when making independent expenditures. …
… If CLC’s experts are having trouble conveying political speech requirements, how can anyone without a law school education get into the business of running political ads and stay out of legal trouble?
Justice Kennedy’s sentiment that speakers should not need lawyers before engaging in political speech must become a reality for our nation’s campaign finance laws to comport with the First Amendment. Let’s at least see if we can make campaign finance law simpler than tax law.