Today the Center for Competitive Politics submitted comments on a Draft Advisory Opinion that the Federal Election Commission will consider at its meeting tomorrow.
The National Right to Life Committee (NRLC) had asked the FEC whether it could use general treasury funds to broadcast two advertisements in the weeks up to the November presidential election. NRLC sought advice from the FEC because both ads it wanted to run refer to Barack Obama and question his position in being "responsible for killing a bill to provide care and protection for babies who were born alive after abortions," as well as "later misrepresent[ing] the bill’s content."
Earlier this week, the FEC released draft advice approving of the first ad, but concluding that NRLC cannot broadcast the second ad because it constitutes express advocacy. Indeed, the Draft Advisory Opinion finds that the second ad is prohibited despite the fact that the ad does not use any language of express advocacy at all. According to the draft advice, the ad constitutes express advocacy, instead, because it "could only be interpreted by a reasonable person as advocating the defeat of Senator Obama."
The comments submitted today by the Center for Competitive Politics point out that the Draft Advisory Opinion is troubling not only because the Ninth Circuit decision and FEC regulation relied upon have been discredited, but also because the ad at issue does not include a call to action, which is required for express advocacy.
To read CCP’s comments, click here.
UPDATE (4:55 pm): The FEC has just posted an alternative Draft Advisory Opinion for consideration tomorrow. This "Draft B" — circulated by FEC Chairman Donald F. McGahn II — follows directly on CCP’s comments from earlier today and considers them favorably. Indeed, the "Draft B" advice, if adopted, would "conclude[ ] that neither of the advertisements contains express advocacy" — exactly as CCP had commented, and does so based on the lack of an "electoral portion" as our comments asserted. "Draft B" also correctly would find that neither ad constitutes a prohibited corporate electioneering communication.
To read the FEC’s "Draft B," click here.