March 5, 2004
Attention: Station Manager
To Whom It May Concern:
This is to inform you that the Moveon.org Voter Fund is currently airing
or may be about to air advertisements on your station that violate federal
election laws. Moveon.org Voter Fund is a non-federal political organization,
a so-called “Section 527” organization. Such organizations are restricted
in spending their money to influence federal elections, but the advertisement(s)
they seek to air is to help defeat President Bush’s re-election.
As a “soft money” Section 527 organization, Moveon.org Voter Fund’s
actions are in violation of the Federal Election Campaign Act and the Bipartisan
Campaign Finance Reform Act (collectively “the Act”) and guidance issued
by the Federal Election Commission. Moveon.org could have aired these ads
through its federally registered separate segregated fund, but instead
chose to use illegal “soft money” in excess of the limits of federal law.
The First Amendment of our Constitution guarantees freedom of speech
and discussion of ideas. However, Congress has enacted laws, which
were recently affirmed by the United States Supreme Court, that govern
how campaign speech can be funded and conducted. Between now and
November, our nation will engage in a debate that pits President Bush’s
strong and steady leadership against others who seek to attack the President
and engage in a vicious, negative campaign. We fully anticipate these
attacks, and I write not because of the misleading allegations contained
in the advertisement, which will be answered in due time, but because running
this advertisement breaks the law.
As a broadcaster licensed by the Federal Communications Commission,
you have a responsibility to the viewing public and to your licensing agency
to refrain from complicity in any illegal activity, specifically in this
case, violations of our nation’s Federal Election Laws. Since this
is a third party political advertisement and not a candidate sponsored
message, your station is under no obligation to broadcast this advertisement.
Moveon.org Voter Fund is Funding Its Federal Election Advertisements
with Non-Federal Dollars, which is Illegal
The Moveon.org Voter Fund’s web site states that it “primarily runs
ads” in Presidential ‘battleground’ states in opposition to a federal candidate
- President George W. Bush. The phrase “battleground states”
is a direct reference used in numerous media reports and in political strategy
planning to refer to states that are viewed as key to the outcome of the
2004 Presidential election. According to press reports, Moveon.org’s
purpose and motivation behind airing these advertisements is to counter
the Bush campaign’s advertising and “ensure that there is a Democratic
presence on the TV airwaves in key states as Bush begins to make his case
for re-election.”
Under the Act, any entity that spends or raises more than $1,000 in
a calendar year “for the purpose of influencing any election for federal
office” must register as a federal political committee with the Commission.
This is not self-selecting. Moveon.org Voter Fund’s television buy
attacking or opposing a clearly identified candidate for federal office
requires it to register and abide by the limits and source requirements
of the Act.
The Federal Election Commission affirmed two weeks ago that any communication
which “promotes, supports, attacks or opposes” a federal candidate falls
under the “hard dollar” rules of the Act. AO 2003-27. The Supreme
Court in McConnell v. FEC, 540 U.S. ____, 124 S.Ct. 619 at 675 n.
64, set the standard for determining whether communications that refer
to a clearly identified federal candidate are for the purpose of influencing
a federal election. The Federal Election Commission confirmed this
by stating, “communications that promote, support, attack or oppose a clearly
identified Federal candidate” have a “dramatic effect” on federal elections.
AO 2003-37, at 3. Further, the Federal Election Commission
said that donations in excess of the Act’s limits and prohibitions could
not be used to fund this type of communication. AO 2003-37, at 9-10.
Even though the most recent Moveon.org Voter Fund reports filed with
the Federal Election Commission indicate receipt of donations of $5,000
or less, these are not enough to cover the costs of Moveon.org’s ads.
This means that they are paying for ads that “promote, support, attack
or oppose” a federal candidate with soft money that violates the prohibitions
and limitations of the Act. The Moveon.org Voter Fund has filed
“electioneering communication” reports with the Commission indicating that
it has received donations from individuals well in excess of the $5,000
maximum federal limit provided for in the Act. For example, the Moveon.org
Voter Fund previously reported nearly $1.5 million in donations from George
Soros and a $971,426.78 donation from “Steven Bing,” along with many other
similar donations that violate the $5,000 limit provided by federal law.
In contrast, both political parties and their respective presidential campaigns
pay for all of their advertisements with funds subject to the limits and
prohibitions established by the Act.
The last two years have seen a long process of campaign finance reform.
Elected officials from both parties have affirmatively declared that use
of non-federal funds in a federal election is illegal. Senator John
Kerry (D-Massachusetts) has said that “McCain-Feingold’s goal and [its]
objective, which I support, is to eliminate altogether the capacity of
soft money to play the role that it does in our politics.” Senator
John McCain (R-Arizona), one of the primary authors of the new campaign
finance law has said, “Some groups …have recently been set up for the sole
purpose of raising or spending tens of millions of dollars in soft money
to influence the 2004 Presidential and congressional elections. ….This
blatant end run around the campaign finance laws should not be tolerated.”
Moveon.org Voter fund is one of these groups evading the new campaign finance
law.
Because the advertisement(s) clearly attacks or opposes President Bush,
an identified candidate for federal office, and is being broadcast in states
commonly considered crucial to the outcome of this Fall’s Presidential
election, the Moveon.org Voter Fund cannot use soft money for this advertising
and must register with the Federal Election Commission.
As you can plainly see from the information provided above, the Moveon.org
Voter Fund is illegally funding the advertisements currently airing or
about to be aired on your station. Now that you have been apprised
of the law to prevent further violations of federal law, we urge you to
remove these advertisements from your station’s broadcast rotation.
Sincerely,
Jill Holtzman Vogel
Chief Counsel