By Brian Lynch
The Hispanic Leadership Fund (HLF) had plans to release multiple advertisements that it characterizes as “address[ing] substantive policy issues facing the federal government on a daily and regular basis.” The ads do not name a specific political candidate, but HLF is concerned the ads will fall under the Federal Election Commission’s (FEC) regulatory authority via the Federal Election Campaign Act (FECA). Ads that clearly identify political candidates during election periods require disclosures and disclaimers, which includes reporting the advertiser’s donors to the FEC.
HSL claims compliance with electioneering disclosure rules could hamper its fundraising efforts, but without the proper disclosures HLF could be subject to criminal and civil liability. The HLF has filed pre-enforcement actions seeking declaratory and injunctive relief in Federal Court in Iowa and Virginia claiming the potential penalties prevent it from engaging freely in constitutionally protected speech and association.
The ads have been called attack ads against President Obama, but the ads do not name Mr. Obama. In lieu criticizing him by name the ads criticize “the administration”, “the White House”, and “the Government”. If the use of the terms meets the clearly identifiable candidate criteria set forth in statute and judicial opinion, the ads would fall under the purview of the FEC.
HSL points to Buckely v. Valeo, 424 U.S. 1, 43 (1976) which defined how ads clearly identify candidates.
Section 608(e)(2) defines “clearly identified” to require that the candidate’s name, photograph or drawing, or other unambiguous reference to his identity appear as part of the communication. Such other unambiguous reference would include use of the candidate’s initials (e.g., FDR), the candidate’s nickname (e.g., Ike), his office (e.g., the President or the Governor of Iowa), or his status as a candidate (e.g., the Democratic Presidential nominee, the senatorial candidate of the Republican Party of Georgia).
HSL’s claim may turn on whether the Buckely court’s list of unambiguous references is complete or if the proposed terms could be deemed equivalent and added to the list. Reading the scripts for the ads makes it clear HSL is dissatisfied with President Obama’s policies and include calls to action for viewers to voice similar dissatisfaction. One ad goes so far as including an audio clip of Mr. Obama. In the context of the ad, it is hard to argue the terms do not clearly identify the President.
Brian graduated from Suffolk University Law School in May of 2012 and served as president of Suffolk Media Law in his last year of school.