A ‘Lantern’ of light for independent political speech?

Earlier this month the Federal Election Commission made public its decision not to proceed with any investigation against a 527 group named The Lantern Project, which had run issue ads about then-Senator Rick Santorum (R-PA) during his 2006 general election battle against now-Senator Bob Casey (D-PA).

As Professor Hasen noted on his Election Law Blog, this ruling may be “A Huge Development in FEC 527 Enforcement” because, “[i]f this is going to be the standard for what 527s can do in the next election without running into the danger of being classified as a political committee, I expect the next few elections will see great growth in this activity.  I think this ruling will take a lot of fear away from potential 527 donors in the next election.”

Here at CCP, we can only hope that is the signal being sent by the FEC through this ruling.

The basic facts of The Lantern Project matter were described in detail in the FEC’s Factual and Legal Analysis:

  • The group reported “raising $1,700,900 and spending $1,633,502 through February 2007, with most of its financial activity taking place in the months immediately prior to the 2006 general election.”
  • “Almost half of the Lantern Project’s receipts, $865,500, came from labor organizations. In addition, $697,000 of the donations received from individuals exceeded $5,000.”
  • “The Lantern Project funded at least eight television advertisements, one Internet ad, and one radio ad, all of which criticized Santorum’s position on an issue.”
  • The Lantern Project’s “written solicitations … t[old] donors expressly that their funds will not be used to support the election or defeat of clearly identified candidates.” And, “the organization’s website identified an instruction to readers that: ‘[c]ontributions to the Lantern Project will neither be used to support or oppose the election of a clearly identified Federal candidate nor to influence Federal elections.'”
  • “The mission statement on the Lantern Project’s website asserts that ‘our mission here is simple: [t]o shine a light on the facts about Rick Santorum’s extreme positions, failed policies and hypocritical statements – and let the facts speak for themselves.'”

The complaint filed by campaign finance crusaders Fred Wertheimer of Democracy 21 and J. Gerald Hebert of the Campaign Legal Center alleged that the group’s purpose, fundraising, and advertising all added up to campaign activity that made The Lantern Project a political committee.  Thus, according to their complaint, The Lantern Project had violated any number of campaign finance laws: (1) by accepting donations from labor organizations, (2) by accepting individual donations that exceeded the $5,000 PAC limit, and (3) by not registering and reporting its activities as a political committee.  But the FEC didn’t see it that way.

The FEC emphasized not only that all of The Lantern Project’s ads amounted to constitutionally protected issue (rather than express) advocacy, but also that there was “no evidence that [The] Lantern Project engaged in fundraising” that would “indicate[ ] that any portion … would be used to support or oppose the election of a clearly identified Federal candidate.”

On the spending side, the FEC explained that a “review of the ads reveals that each of them is critical of Santorum, but at the same time, they focus on issues, and never mention Santorum’s candidacy or his political opponent.”  Furthermore, “[w]hile the communications clearly indicate that the Lantern Project disagrees with Santorum’s policies on various issues, it does not tell readers to vote for Santorum, and does not identify him as a candidate.”  In other words, the ads were not “express advocacy” that would constitute “expenditures” triggering political committee status and campaign finance regulation.

On the fundraising side, the FEC noted that the “complaint did not submit any Lantern Project solicitation letters or direct mail … appeals” as evidence that donations would be used for electoral advocacy.  Moreover, “The Lantern Project response directly addresses the complaint’s allegations by explaining that … donors were ‘expressly’ told ‘that their funds will not be used to support the election or defeat of clearly identified federal candidates.'” As a result, the FEC had no choice but to find that “there is an insufficient basis on which to conclude that the Lantern Project has received contributions exceeding $1,000,” which meant that the group had not “triggered political committee status through contributions” either.

With no evidence that The Lantern Project had run afoul of any federal campaign finance laws, the FEC did the only thing it could — it proceeded no further and dismissed the complaint.

Indeed, the FEC’s decision to “close[ ] its file in this matter” — and not to proceed with any investigation — is precisely the non-investigatory and non-enforcement position CCP and others have argued the FEC should take earlier and more often in matters like this in order to prevent chilling independent political speech that is constitutionally protected.

That is one of the points CCP and others made in comments filed earlier this year with the FEC when the agency opened a review of its enforcement procedures.

After all, an FEC investigation often ends up being the punishment in and of itself, coming with all of the distracting inquisition and mounting costs you would expect from a federal prosecution.  And, if the complaint and the response provide no evidence that campaign finance law has been broken, then the agency should not proceed with an investigation that will undoubtedly have a chilling effect on political speech far beyond those who have to endure the investigation becoming a part of their professional and personal lives.

So the fact that the FEC decided not to investigate The Lantern Project puts down a good marker protecting the First Amendment rights of independent political speakers to comment — even sharply and vigorously — on public policies and issues, even when they are explicitly and intimately tied to a elected official who is also campaigning to retain his seat.

We can only hope that line remains as clear as the FEC made it in deciding drop The Lantern Project matter.

The Center for Competitive Politics is now the Institute for Free Speech.