Non-profit group files lawsuit against FEC to secure ability to publish Obama’s abortion stance

Washington D.C., Aug 1, 2008 / 04:07 am

A group which says it is trying to expose Sen. Barack Obama’s “radical pro-abortion views and voting record” on Wednesday filed a “pre-emptive” suit against the Federal Election Commission (FEC) and the Department of Justice to prevent them from enforcing rules that the group claims hinder its engagement in issue advocacy.

The Richmond, Virginia-based group The Real Truth about Obama (RTAO) is a 527 Group, meaning it is a non-profit “political organization” classified under Section 527 of the Internal Revenue Code. An RTAO statement released on Wednesday said the group was formed to tell Americans the “real truth” about Obama’s political positions, beginning with the presumptive Democratic presidential nominee’s support for legalized abortion.

RTAO has produced a radio ad called “Change,” which reportedly describes Obama’s position on abortion without expressly advocating his election or defeat. The group also has a website but it is not operational due to what the group says are the FEC’s enforcement policies which prohibit it from raising money for the project.

According to the RTAO statement, the group fears it will be deemed a federal Political Action Committee (PAC) because of FEC actions prompted by various issue-advocacy groups active in the 2004 election, such as the Swift Boat Veterans for Truth. The Swift Boat Veterans were fined for failing to register as a federal PAC, though they were only engaged in issue advocacy, RTAO claims.

The U.S. Supreme Court described issue advocacy in the case “Wisconsin Right to Life, Inc. v. Federal Election Commission,” in which the court said: “Issue advocacy conveys information and educates. An issue ad's impact on an election, if it exists at all, will come only after the voters hear the information and choose--uninvited by the ad--to factor it into their voting decisions.”

James Bopp, Jr., lead attorney for RTAO, argued the group should not be registered as a PAC.

“Issue advocacy cannot be regulated by the FEC, and groups that engage in it cannot constitutionally be required to register as federal PACs,” Bopp asserted. “The FEC’s enforcement actions arising out of the 2004 election were outrageously unconstitutional, and we hope that this lawsuit will to put a stop to a repeat in 2008.”

Bopp further argued that the FEC has not changed its regulations to conform to the Supreme Court’s reaffirmation that issue advocacy enjoys constitutional protections.

“Instead, the FEC plans to use its complicated PAC enforcement policy, developed in 2004, to punish groups for engaging in issue advocacy,” he said. “This is unconstitutional, and we hope the federal courts will put an end to it.”

The RTAO complaint charges that FEC regulations enforce a “vague and overbroad” rule which prohibits “express advocacy.”

Speaking in an interview with CNA on Thursday, Bopp said that RTAO’s concerns originate in the treatment of the Swift Boat Veterans and other groups active in the 2004 elections.

“The FEC pursued these organizations, claiming that they should have registered with the FEC as a Federal PAC and be subject to all their issues and restrictions,” he explained.

“They were able to coerce many of these organizations into paying heavy fines,” Bopp said, claiming the FEC justified the fines according to what he called a “bogus and unconstitutional” legal theory.

According to Bopp, the FEC has threatened similar action in the 2008 election cycle and the RTAO group wishes to engage in issue advocacy without being punished.

“Rather than risk an enforcement action, they have decided to bring suit so they can get a federal injunction,” he explained. “This is a pre-emptive suit.”

The RTAO feared “anything that they would do to pursue even funding for this project would be illegal under the FEC’s unconstitutional enforcement policy.”

“They don’t want to be violating any law. They chose to go to court to determine whether the FEC’s rules are lawful or not,” Bopp continued.
He explained that political advocacy, which can be regulated under FEC rules, takes place when one expressly advocates the election of a candidate by saying “vote for” or “vote against” the candidate.

“Issue advocacy is just talking about public policy issues,” Bopp said. “’Obama voted for or against this bill, he’s in favor of partial-birth abortion, he’s in favor of federally funding for abortion in the United States,’ that’s just talking about an issue.”

He argued that FEC regulations were an unconstitutional threat to free speech because “they would regulate groups that engage in issue advocacy by requiring them to be a federal PAC subject to very extensive requirements and restrictions.”

“That’s the problem we’re facing,” he said, speaking of RTAO. “If this group started talking about Obama’s radical pro-abortion position, then they would be punished by the FEC, and they don’t think it’s lawful for them to be punished.”