U.S. Chamber: Federal Election Commission Final Rule on "Electioneering" Still "Missing a Few Pieces"

WASHINGTON, D.C.-Steven J. Law, chief legal officer and general counsel at the U.S. Chamber of Commerce, made the following statement today regarding the Federal Election Commission's approved new rule governing permissibility and disclosure of "electioneering communications."

"This rule has become a jigsaw puzzle with some pieces still missing," said Law. "We are encouraged that the Commission recognizes the Supreme Court's insistence on clear standards for speakers, although the rule falls far short of providing an objective bright-line test, and imposes disclosure requirements on legitimate, constitutionally protected issue advocacy."

The Federal Election Commission had initiated the rulemaking in response to the U.S. Supreme Court's Wisconsin Right to Life decision, which ruled that the "electioneering communications" restrictions enacted by Congress in the Bipartisan Campaign Reform Act (BCRA) could not constitutionally bar private entities from engaging in bona fide "issue advocacy" even if it was within 60 days of a general election or 30 days of a primary election.

The FEC's newly approved rule provides a definition of issue-related communications that would be considered exempt from the "electioneering communications" ban. The definition is based on language contained in the Wisconsin Right to Life decision, and includes a "safe harbor" that speakers could use to ensure that they are within the FEC's "electioneering communications" exemption.

However, the FEC will not issue its Explanation and Justification for the new rule until later; and that document is expected to provide further detail to the already complicated definition approved by the Commission today.

In addition, the new rule will require speakers that engage in bona fide issue advocacy covered by the exemption to nevertheless report sources of contributions if given "for the purpose of furthering electioneering communications."

The U.S. Chamber is the world's largest business federation, representing more than 3 million businesses and organizations of every size, sector, and region.

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