WASHINGTON — Does the term “the White House” refer to President Obama?
That was the semantic question facing the six-member Federal Election Commission on Thursday as it considered a request by the conservative advocacy group American Future Fund to run TV commercials that refer to “the White House” or “the administration” — or even use Obama’s voice — without triggering a rule requiring groups that fund election-related ads to disclose their donors.
After an occasionally contentious one-hour debate, the commission couldn’t decide, deadlocking along party lines.
The inaction by the FEC injects more uncertainty to the ongoing fight over the disclosure of donors to some of the biggest outside groups participating in the 2012 campaign. Jason Torchinsky, an attorney for American Future Fund, said after the meeting that the group might file a lawsuit seeking clarity from the courts.
Until recently, tax-exempt advocacy groups had been able to engage in a limited amount of political activity without revealing who was financing their efforts. But in March, a federal judge in Washington ruled that groups that run a type of advertising called “electioneering communications” must identify their contributors.
An appeal of the case is set to be heard in September. But in the meantime, conservative advocacy groups are scrambling to find ways to air ads this summer without triggering the disclosure requirement.
To be considered an “electioneering communication,” a TV spot must air in the 30 days before a primary or 60 days before a general election and refer to a “clearly identified” candidate for federal office, without advocating for his or her election or defeat.
In its request to the FEC for an advisory opinion, American Future Fund proposed eight alternative ads that criticize the administration’s energy policy and healthcare overhaul but stop short of using Obama’s name. The group is hoping to avoid running ads that qualify as electioneering communications, because it “does not want to risk being compelled to violate its donors’ privacy expectations,” Torchinsky wrote.
The proposed ads depict images of the White House or the Washington Monument rather than photos of Obama.
“Since this administration began, gas prices are up 104%,” reads the script for one ad. “Tell the White House it’s time for an American energy plan that actually works for America.”
Another proposed ad includes an audio clip of Obama stating, “We must end our dependence on foreign oil.”
“Only those familiar with President Obama’s voice will know that it is President Obama speaking,” Torchinsky wrote.
That notion was met with incredulity by one of the FEC’s Democratic commissioners, Ellen Weintraub, who expressed surprise that Comedy Central satirist Stephen Colbert had not yet “made a joke out of this one.”
“The voice of the president is so clearly recognizable to the citizens of this country,” she said. To underscore her point, Weintraub played audio clips of Presidents Franklin Roosevelt, Kennedy and Reagan for the half-filled hearing room. “And those are dead guys … but their voices clearly identify them.”
She chided the American Future Fund for lacking “civic courage” in its effort to avoid disclosure, saying, “A better-informed electorate is actually a good thing … it’s not something to hide from.”
After she concluded, Republican Commissioner Donald McGahn applauded sarcastically and admonished her for referring to former presidents as “dead guys.”
McGahn argued that the ads proposed by the conservative group should not be considered electioneering communications, noting that the law does not mention the use of audio clips. And practically speaking, “the White House” would not qualify as a federal candidate, he said.
“You could say, ‘This is cute,’ ” McGahn said, but added that the ads should not be judged by an “everybody-knows-what-it-means” standard.
A majority of the commission did agree that using the terms “Obamacare” or “Romneycare” in an ad, as proposed by the American Future Fund, would amount to electioneering communications. And the panel unanimously found that an ad that referred simply to Health and Human Services Secretary Kathleen Sebelius would not qualify.