by Kathleen Imbriglia

The First Amendment  guarantees freedom of speech and is a hallmark of the United States Constitution. It is one Americans deeply revere and protect, attacking those attempting to abridge this right. The Federal Election Commission has been aggressively defending its regulations and case-by-case analysis determination of which groups must register as Political Action Committees (PACs). In a recent case, Free Speech v. Federal Election Committee, decided on October 3, 2012, Federal District Court of Wyoming Judge Scott Skavdahl upheld the Federal Election Committee’s regulations concerning disclosure and registration as a Political Action Committee (PAC). In denying the Wyoming-based organization, Free Speech, a preliminary injunction to continue running their advertisements, Judge Skavdahl upholds precedent regarding the validity of the Commission’s regulations, finding the definition of 11 C.F.R. § 100.22(b) is not overly vague or uncertain.

The local group, Free Speech, is a small, unincorporated organization with the mission of utilizing individual donations to provide for various television, newspaper, Internet, and radio advertisements concerning local, pertinent issues. Free Speech considers their advertisements, “issue advertisements” because they do not specifically advocate for or against a particular candidate. The Federal Election Commission sent Free Speech an Advisory Opinion, stating they consider several of their ads to fall under the definition of “express advocacy advertisements”, thus requiring them to register as a PAC and imposing extremely onerous regulations and compliance costs. Free Speech filed a suit on June 14, 2012, arguing that the definition of express advocacy, according to 11 C.F.R. § 100.22(b) is overly vague, leading to uncertainty for organizations. Free Speech claims that because of the Commission’s unclear terms, organizations may be unknowingly subject to criminal or civil penalties; that the Commission’s regulations regarding PACs are overly arduous for small groups; and arguing the Commission does not need to be informed of independent expenditures. Ultimately, Free Speech is pursuing the suit because the effect of such regulations as the Federal Election Commission imposes greatly limits the freedom of speech for local grassroots organizations.

Local grassroots organizations are often small with minimal financial capabilities. Rulings that impose stringent and burdensome regulations and mountainous costs effectively shut down their ability to reach local populations with their messages. Frequently they are not receiving hundreds of thousands of dollars from donors, but function on a much smaller scale than the larger, national organizations. Free Speech sought to spend $10,000 from individual donors on advertisements regarding particular local issues in Wyoming, making it nearly impossible for them to comply with the Federal Election Commission’s regulations and costs for PACs running express advocacy advertisements.

The core of Free Speech’s argument centers on whether their advertisements are considered “issue advertisements” or “express advocacy advertisements.” Free Speech initially submitted its advertisements to the Federal Election Commission, which could not  issue a clear judgment on whether the advertisements are issue ads or express advocacy, creating a troubling situation for Free Speech and other organizations in a similar predicament. The Commission uses a multi-factor analysis that is particularly fact-intensive in determining if an advertisement is express advocacy. Advertisements that trigger “magic words” are automatically considered express advocacy. Examples of “magic words” include “vote for,” “support,” “reject,” “defeat,” and “vote against”. However, the Commission, under § 100.22(b) may also determine whether advertisements without “magic words” still constitute as express advocacy if they have an unambiguous message that could only be considered a message either supporting or opposing a candidate.

Judge Skavdahl’s upholding the validity of § 100.22(b), finding the Federal Election Commission’s regulations are not overly vague or unclear, poses debilitating problems for local grassroots organizations, like Free Speech. Operating with minimal resources, local and state organizations may fear exposing themselves to liability under the Commission’s rules and regulations while not being able to adequately defend their actions. As in this case, the Advisory Opinion did not offer a clear judgment or standard on their advertisements or a uniform opinion if they are issue advertisements or express advocacy advertisements, thus prompting freedom of speech concerns. Yet  disclosure laws are vitally important in fighting political corruption and encouraging transparency in elections. Judge Skavdahl references a Fourth Circuit Court of Appeals case, Real Truth About Abortion v. FEC, which raises similar issues about the vagueness of § 100.22(b) and also upheld the Commission’s regulations, stating that § 100.22(b) remains consistent with the previously adopted functional equivalence test.

Attorneys and representatives for Free Speech claim that Judge Skavdahl’s ruling ,upholding the regulations of the Federal Election Commission, is a form of censorship because of the crushing regulations on small organizations who are forced to register as a PAC. Grassroots and local organizations have concerns over their inadequate options to effectively function in the face of overly burdensome regulations.  Free Speech vows to continue to fight for the freedom of speech and defend their rights under the First Amendment to prevent the devastating effect the Federal Election Commission’s regulations have on local organizations trying to reach local audiences within their state and region regarding pertinent issues.

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