The HarmonCurran article continues:
“The FEC reviewed four different Sierra Club documents submitted with a complaint. Three were determined to be permissible, unregulated communications. The fourth became the focus of contention. Headlined “Let Your Conscience Be Your Guide?and Let Your Vote Be Your Voice,” the pamphlet consisted of two checklists comparing the environmental records of President Bush and Senator Kerry, as well as of two 2004 Senate candidates, Mel Martinez and Betty Castor. In the document, President Bush received one checkmark on his environmental record, while Mr. Martinez received none. By contrast, both Senator Kerry and Ms. Castor were awarded checkmarks in every category.
“The FEC decided that the publication qualified as express advocacy. It reasoned that the combination of the language in the document — in both the title and the narratives attached to the checklist categories — “exhorting readers to vote for the candidates clearly favored by the Sierra Club” and the checkmarks constituted “an explicit directive to vote” for Kerry and Castor. The FEC concluded that the communication was “unmistakable, unambiguous, and suggestive of only one meaning, and reasonable minds could not differ as to whether the pamphlet [encouraged]” individuals to vote for candidates or take some other kind of action. After the FEC voted 4-2 to find probable cause that a violation had occurred, the Sierra Club agreed to settle the matter rather than pursue it in court.
“In finding that the organization had improperly spent its corporate (not PAC) funds on this piece, the FEC relied on a second definition of express advocacy contained in its regulations. Since those regulations were adopted, several appeals courts have found this definition unconstitutional, permitting the Commission to regulate only speech containing the familiar “magic words” such as “vote for” or “vote against.” For years the regulation remained on the books but unenforced. However, the FEC has apparently decided to try again to apply this “reasonable minds” standard to determine whether voter education materials have crossed the line and must be paid for by a PAC.
“This broader standard poses particular difficulties for a voter guide, which inherently must contain an electoral reference. The small piece of good news for advocacy groups hidden in this ruling may lie in the documents that the FEC did not object to. For instance, a document encouraging the reader to “dig deeper for the facts about the candidates” did not unambiguously encourage voting one way or another because it encouraged an alternate action — learning about the candidates — and provided the address of the group’s web site for more information. This may provide a valuable hint about ways to introduce non-electoral calls to action and thus avoid express advocacy.
“Nevertheless, nonprofit organizations engaging in advocacy should be careful with issue advocacy publications and voter guides in particular. Groups can often protect themselves by including a non-voting call to action on advocacy pieces. In borderline cases, it is always best to consult a knowledgeable attorney.”
Although this piece you quoted does say it, a lot of people reading this sort of thing tend to miss it: These aren’t rules about what you may say, these are rules about how money raised in certain kinds of ways (in this case, corporate contributions) may not be spent.
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These are rules that apply to groups with bank accounts that they use to raise money and spend money on political advocacy. If you are not a group with a bank account, these rules do not apply to you; say whatever you feel like. If you are a group with a bank account, you can still say whatever you like as long as you don’t spend the wrong kind of money (money with inappropriate tax status) to say it.
Sorry I do not have more time to comment fully, but I noticed your diary and remembered a story I read in the NYT yesterday which may be worth noting. Apparently, the United States Court of Appeals for the District of Columbia Circuit has
I am not sure what the court’s decision does to the FEC’s position without looking at both closer, but I thought it was worth mentioning.