“Issue Advocacy” vs. “Electioneering Communication” – More Than Words

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Warning:  Organizations producing issue-related publicity could be subject to the same political campaign reporting requirements imposed on groups making “electioneering communications,” whether or not they expressly advocate a candidate.  A Vermont trial court recently fined Green Mountain Future (GMF), an issue advocacy organization registered with the IRS under section 527 of the Internal Revenue Code, for violation of Vermont campaign finance laws.  Vermont v. Green Mountain Future, 2013 WL 5387153. Specifically, GMF failed to disclose information required for an “electioneering communication,” under Vermont law.

At issue were television advertisements that GMF aired in the two months prior to the 2010 Vermont gubernatorial election.  The commercialscentered on Brian Dubie, the Lieutenant Governor at that time, who was a candidate in the election and who supported the continued operation of Yankee Nuclear Power Station.   The ads were aired in opposition to the power station and Dubie’s support of it.  Though the advertisements did not expressly ask voters to vote against Dubie in the upcoming election, the trial court nonetheless held that the ads constituted “electioneering communications.”   

As the court wryly explained: “[The advertisements] refer to a clearly identified candidate for office" and "oppose [his] fitness for office by raising questions about his judgment and policy choices. . . It would require the cheerful credulity of a very young child to conclude that the two political advertisements, prominently featuring Lt. Governor Dubie's name and photograph and aired just prior to the gubernatorial election, had neither the intention nor the effect of advocating against his election." Thus, it drew the "obvious inference from the undisputed facts that the advertisements, objectively viewed, were created and broadcast for the purpose of opposing a candidate." 

The Vermont Supreme Court affirmed the decision of the trial court.   In doing so, the Court relied on the recent landmark case of Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).  In Citizens United, the US Supreme Court extended the First Amendment’s constitutional protection of freedom of speech to corporations engaging in electioneering communications. Notably for the Vermont case, the Supreme Court also rejected the argument that disclosure requirements apply only to the functional equivalent of express advocacy.   In other words, context matters.  

Tax-exempt organizations organized and operated under Sections501(c)(4) and 527 each have different legal limitations and reporting requirements for engaging in issue advocacy versus electioneering.   (Note that Section 501(c)(3) organizations are absolutely prohibited from engaging in any political campaign activity intended to influence the election of a candidate.) The Vermont case shows that organizations may not be able to avoid these limits and reporting requirement just by intentionally avoid using certain words of express advocacy (“vote for, “elect,” etc.).  This is more acutely true in the midst of an election year.    Advocacy groups must be mindful of factors like to timing of ads, naming of specific individuals, and references to upcoming electoral decisions.  Failure to pay sufficient attention to such factors may cause an organization to incur substantial disclosure obligations.