A quick note re: 11 CFR 100.22(b)

Professor Rick Hasen of the Election Law Blog directs readers, rightly, to the Commissioners’ statements of reasons in the Americans for Job Security (AJS) matter, for the matter is an important one to understanding the political committee construct developed by the Commission.  Hasen asks readers to check out footnote 30 of the Republicans’ statement, where he suggests “it looks pretty clearly to [him] that the 100.22(b) test is being read in light of WRTL [II].”

To put it in the language of WRTL II, however, a cursory review of “the four corners” of footnote 30, “with limited reference to [the] context” of Hasen’s comments may leave readers “no other reasonable interpretation other than” to believe the Republican Commissioners are four-square behind the validity and enforcement of 11 CFR 100.22(b).  This is not so.  The Republican Commissioners address 11 CFR 100.22(b) only arguendo in the AJS matter, and promise a more thorough statement on the validity of 11 CFR 100.22(b), or lack thereof, in the near future.  We at CCP, among others we’re sure, look forward to reading it.

Here is a relevant quote from the well-reasoned statement of the Republican Commissioners reviewing the activities of AJS:

These allegations [against Americans for Job Security] turn on whether the ads in question contained “express advocacy” as defined in 11 CFR 100.22.  Even assuming arguendo that the plain language of section 100.22 is constitutional and enforceable, the ads do not come within the regulatory reach of either section 100.22(a) or (b).  Thus, we need not address section 100.22(b)’s checkered history in the federal courts to reach our conclusion.  Nonetheless, because both Complainants and OGC failed to acknowledge (until raised by us) that history—let alone explain how section 100.22(b) can be applied in the Fourth Circuit [to the Burr ad Public Citizen complains of], when (i) the Fourth Circuit has already found that section unconstitutional, and (ii) [the] Commission has stated publicly that it would not enforce section 100.22(b) in that Circuit, among other jurisdictions—we intend to address section 100.22(b) broadly in a separate statement.


Our take(s) on the problems with resuscitating the definition at 11 CFR 100.22(b) after it was held unconstitutional by inferior Courts are here, here, and here.


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