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FEC: Devil's in the details
Rulemaking process will determine how campaign finance reform is enacted.

By Derek Willis
Congressional Quarterly

If reporters are unsure about the effects of the new campaign finance law, they have good reason to be: almost everybody else is, too.

That's because, though President Bush signed the McCain-Feingold bill into law on March 27, the Federal Election Commission has the job of writing the regulations that actually will become the tenets of the law. And the going hasn't been easy, or even simple, to explain.

Currently the commission is wrestling with the portion of the law that restricts "issue advertisements" that have proliferated since the 1996 election. The law bans broadcast ads aired within 30 days of a primary or 60 days of a general election that are paid for with corporate or labor union treasury money and clearly identify a federal candidate.

In mid-June, the FEC began crafting the rules that would ban national political parties from raising and spending "soft money" -- funds raised outside the limits set forth by federal law. Although the commission made a number of changes to the proposed rules, very few of them significantly altered the impact. Most made it easier for state and local parties to conduct get-out-the-vote and voter registration drives without filing federal campaign reports. But a few changes are worthy of mention.

First, the commission limited the period that included federal election activity -- expenditures in connection with a campaign -- by changing the date they officially begin from Jan. 1 of an election year to the earliest filing date for ballot access for a primary election in each state. That means some of the new restrictions might not apply to state political parties or interest groups outside of that period.

Second, the commission exempted Internet communications from the soft money ban. In other words, state political parties could use soft money to pay for advertisements broadcast only over the Internet. Whether or not this will happen in a significant way is an open question, but it's something to keep an eye on.

Third, the FEC expanded the definition of "building" to include "facility," which caused some observers to predict that state parties would be allowed to buy equipment and furniture using soft money. The national parties can do neither after Nov. 6. Some supporters of the law say the commission also opened the way for state parties to buy larger-than-needed buildings and rent space to supporters.

The issue ad regulations could prove even trickier, since they are often cited as constitutionally suspect. Indeed, the law has a "backup" provision that would take effect if the initial language was struck down by the courts. (Oral arguments in a consolidated lawsuit will take place in early December.)

The FEC is charged with writing rules reqarding broadcast ads that "promote, support, attack or oppose" a referenced federal candidate, are funded by soft money and air within the 30 or 60-day window. The commission can choose to exempt certain types of broadcasts from those regulations, including public service announcements or programming paid for by a third party. In other words, a political ad created by, say, the Sierra Club could be shuttled to another group (or person) which then could pay for its placement on television.

Another possible exemption could focus on lobbying communications - what most experts consider true "issue-oriented" ads. But it's likely that in crafting an exemption the commission could provide political groups with a road map for closely skirting the law. The FEC has to finalize these regulations within 270 days of the law's enactment, so stay tuned.

The law also requires television and radio stations to keep better records of political advertising buys, but does not mandate that a central database be kept. The Campaign Finance Institute, a nonprofit think tank, recommended that the FEC require stations to forward information on political ad buys to the Federal Communications Commission, where it would be kept in a publicly-available database. A centralized database would be of enormous value to reporters, but the commissioners are doubtless sensitive of the requirements such a directive would place on every television and radio station to forward the information to Washington.

Derek Willis covers the House of Representatives for Congressional Quarterly and is the founder of thescoop.org.

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