Ads Referring to Obama Deemed Electioneering

CHICAGO (CN) - Hispanic Leadership Fund advertisements cannot directly allude to the Obama administration, but they may use an audio clip of Obama's voice, a federal judge ruled.

The Hispanic Leadership Fund, a nonprofit organization that communicates to the public on federal and state policy matters, gave the Federal Election Commission five of its pre-presidential election advertisements to determine whether the ads are "electioneering communications" - that is, whether they contain contextually unambiguous references to clearly defined candidates for federal office.

During the 60 days preceding a federal election, entities may publish electioneering communications only if they comply with the commission's disclosure requirements. Otherwise, such entities may face criminal investigation or prosecution by the Department of Justice. The fund sought guidance on this issue from the court in August 2012.

U.S. District Judge T.S. Ellis III found last week that three of the five proposed advertisements are electioneering communications subject to the commission's disclosure requirements.

The judge threw out the Hispanic Leadership Fund's argument for a noncontext-specific standard as well as its claim that the term "the administration" is ambiguous enough to refer to either Obama or the entire executive branch.

"The flaw in this argument is that [the Federal Election Campaign Act] does not call for the application of a standard that is independent of context, nor would such a standard make sense, for the meaning of any term or reference typically depends on the context," the judge ruled.

Ellis also nixed claims that one advertisement's use of "the White House" and "the administration" does not explicitly reference a candidate for federal office. He disagreed that, depending on the context, the terms could refer to the institution rather than to a candidate.

"The advertisement states 'since this administration began' and 'the White House says' while referring to the policies and actions of the president and showing images of the White House," Ellis wrote. "And the advertisement instructs viewers to 'tell the White House it's time for an American energy plan.' Thus, it is clear in this advertisement that 'the White House' and 'the administration' are being used as synonyms for President Obama." (Emphasis in original.)

Another advertisement that includes an audio clip of President Obama does not, however, constitute electioneering.

"Although the FEC argues that President Obama's voice is widely recognized, there is no factual basis for reaching this conclusion," Ellis wrote. "Significantly, the FEC offered no surveys or other evidence to warrant the conclusion that the average listener would recognize President Obama's voice simply by hearing an eight-word sentence. In the absence of such evidence, there is no way to conclude that the reference to 'the government' in this advertisement is a contextually unambiguous reference to President Obama."

Ellis also brushed aside a claim that the electioneering communication disclosure provisions violate the First and Fifth Amendment rights to political speech and due process, respectively, of the Hispanic Leadership Fund.

"Both the Supreme Court and the Fourth Circuit have made clear that [the Federal Election Campaign Act's] disclosure requirements for electioneering communications are constitutional because they are justified by the public's interest in knowing who is speaking about a candidate during the election period," the 33-page decision states.

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