Obama campaign asks FEC to rebuff outside group on secret donors

The Obama campaign is urging the Federal Election Commission (FEC) to rebuff a Republican group that wants to run issue ads against President Obama without disclosing who paid for them.

The campaign says the American Future Fund is seeking to “circumvent” disclosure requirements with a series of television and radio ads hitting Obama on energy policy and healthcare. Obama for America said it’s indisputable that the group’s campaign would fall under the FEC rules for electioneering communications.

“Requestor can have no genuine question of whether it will be referring to a candidate in the bulk of its proposed ads, or whether it will be ‘too difficult to determine the candidates’ identified,'" wrote Obama campaign representatives Robert Bauer and Brian Svoboda.

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The American Future Fund submitted an advisory opinion request to the FEC last month to test the waters for the ad campaign. The group provided full scripts for eight ads and asked the FEC to determine whether they “include one or more references to a clearly identified candidate for federal election,” which requires the disclosure of donors. 

The eight advertisements referred to the White House, the government and ObamaCare, but did not specifically mention President Obama by name.

American Future Fund cited a desire to protect the privacy of its donors in its request for the ads to be ruled as exempt from electioneering communications rules.

“AFF seeks to broadcast a series of television advertisements about American energy policy, the proposal to require religious institutions to pay for insurance policies that cover certain abortion causing drugs … and the Patient Protection and Affordable Care Act in general,” the Fund’s Jason Torchinsky and Michael Bayes wrote. 

“AFF does not, however, want to subject itself to the burden of filing electioneering communications reports for these advertisements, and does not want to risk being compelled to violate its donors' privacy expectations as the result of ongoing litigation in Van Hollen v. FEC.”

The issue of disclosing donors is at the heart of the Van Hollen lawsuit, which was brought forward by Democratic Rep. Chris Van Hollen (D-Md.). In the latest development in that case, an appeals court on Tuesday upheld rules requiring the disclosure of donors behind issue ads.

Bauer and Svoboda argued that a candidate does not have to be mentioned by name or shown in an image to be “clearly identified” as the target of an ad. They cited FEC precedent, when the commission ruled that saying “Vote Republican” or “Vote Democratic” in a single-candidate special election referred to a candidate.

The Obama campaign cited the Supreme Court’s controversial Citizens United ruling in arguing that the public has the right to know who is purchasing ads and warned that letting American Future Fund evade the rules could mark the  “vanishing point” for disclosure requirements.

“The law simply provides no basis for this outcome[.] For these reasons, we ask the Commission to issue a clear response supported by law, upholding the well-established and common sense meaning of ‘clearly identified candidate’, so that citizens may have the information they need ‘to hold corporations and elected officials accountable for their positions and supporters,’” Bauer and Svoboda wrote.

One of group’s advertisements would focus specifically on Kathleen Sebelius, Obama’s secretary of Health and Human Services. The ad hits Sebelius over the mandate for insurers to cover contraception and accuses the “government” of trampling on religious freedom.

Another ad focused on energy would air audio of Obama stating, “We must end our dependence on foreign oil,” but would not identify the president as the person speaking. The ad cites rising gas prices and says the “government” has “stopped energy exploration and banned most American oil and gas production” 

The Campaign Legal Center and Democracy 21, two campaign finance watchdogs, commented on American Future Fund’s request earlier this month. The watchdogs argued that seven out of the eight ads “refer to a clearly identified candidate.”

Only the ad targeting Sebelius, the watchdogs said, should be exempt from the disclosure rules for electioneering communications.