by Kathleen Imbriglia

The regulation of campaigns is controversial, weighing the interests to prevent corruption and promote disclosure while protecting the First Amendment’s fundamental right to free speech. Such tension is exemplified by the ongoing suit, Free Speech v. Federal Election Commission, filed in the Tenth Circuit Court of Appeals by the Wyoming-based organization, Free Speech. Free Speech first filed a suit in June arguing their advertisements are considered “issue advertisements” and that they should not be subject to the ambiguous reach of the U.S. federal regulation, 11 C.F.R. § 100.22(b). However, on October 3, 2012, Federal District Judge Skavdahl upheld the regulation, deeming it to not be overly vague or uncertain on the grounds that it is consistent with the functional equivalence test. In response, Free Speech filed a motion for emergency injunction so as to allow Free Speech’s campaign advertisements to run prior to the 2012 federal election. The Tenth Circuit Court of Appeals denied the motion and the case is currently awaiting appeal.

Of particular interest in this case is the fact that Free Speech took the time to request an Advisory Opinion from the Federal Election Commission (FEC) to ensure their advertisements’ categorization as “issue advertisements” rather then “express advocacy advertisements”, which trigger onerous regulations making it difficult for small, grassroots organizations to meet. These burdens are so arduous that it effectively shuts down these organizations from exercising their right to free speech and disseminating messages. The FEC’s commissioners did not come to an agreement regarding the advertisements submitted by Free Speech, thus providing no clarity or guidance. It is important to note the composition of the FEC is comprised of three liberals and three conservatives, a factor to consider in their disagreement in this case and a potentially overarching problem in failing to provide clear guidance.

The FEC evaluates factors they consider when determining whether an advertisement constitutes an “issue advertisement” or an “express advocacy advertisement” under § 100.22(b). Such considerations include, but are not limited to:
•  If an advertisement focuses on a particular candidate’s “qualifications, accomplishments, and fitness for office.”
•  Considerations of how a viewer of the advertisement would reasonably interpret it.
•  Whether the majority of spending occurred during three months leading up to the general election.
•  If the advertisement refers to one candidate in “strong terms.”

These examples highlight some of the characteristics of advertisements the FEC commissioners consider when determining whether an advertisement includes “express advocacy”. Ultimately, the inconsistent application by the FEC of § 100.22(b) to advertisements causes both confusion and uncertainty for organizations attempting to comply with FEC regulations. Due to the vagueness of § 100.22(b) and the failure of the commissioners to provide meaningful direction to organizations like Free Speech, organizations are stuck between a rock and a hard place; either violating federal law or exercising their right to free speech.

The Supreme Court analyzed 11 C.F.R. § 114.15 in Citizens United v. Federal Election Commission and held, “[T]he FEC has created a regime that allows it to select what political speech is safe for public consumption by applying ambiguous tests. If parties want to avoid litigation and the possibility of civil and criminal penalties, they must either refrain from speaking or ask the FEC to issue an advisory opinion approving of the political speech in question. Government officials pore over each word of a text to see if, in their judgment, it accords with the 11-factor test they have promulgated. This is an unprecedented governmental intervention into the realm of speech.” The organization, Free Speech, even sought out the Advisory Opinion from the FEC, which was unable to provide any guidance or opinion as they failed to reach consensus. This holding clearly can apply to the current issues arising out of the vagueness of § 100.22(b) and subsequent confusion for organizations potentially subject to its regulations.

Currently, Free Speech v. Federal Election Commission is pending appeal in the Tenth Circuit Court of Appeals. Steve Klein, Staff Attorney and Research Counsel for the Wyoming Liberty Group representing Free Speech explains, “I believe the [Advisory Opinion] process in our case shows as-applied vagueness and overbreadth and adds to the growing list of [Advisory Opinions] and enforcement actions that illustrate this point, which should contribute to the courts’ consideration of facial vagueness and overbreadth.” Circuit courts hearing previous cases predicated on similar arguments have upheld the FEC regulation and constitutionality of § 100.22(b), including Real Truth About Abortion v. FEC, in the Fourth Circuit Court of Appeals. However Mr. Klein believes the current case provides a stronger example of the arbitrariness of the FEC’s application of § 100.22(b).
Despite the inability for Free Speech to run their advertisements prior to the 2012 election, Free Speech continues to pursue their suit in the Tenth Circuit Court of Appeals in order to provide greater clarity regarding § 100.22(b). Organizations such as Free Speech should not be hampered by the confusion and frustration of § 100.22(b) and meaningful direction should be clearly provided for organizations based on objectivity instead of being continually obstructed by such ambiguous regulations.


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