ANA and Industry Groups Submit Comments on FEC Rulemaking on "Electioneering Communications"

The Association of National Advertisers (ANA) and our sister associations, the American Association of Advertising Agencies (AAAA) and the American Advertising Federation (AAF) have filed comments with the Federal Election Commission (FEC) on a proposed rulemaking regarding "electioneering communications."

Under federal campaign finance law, corporations and labor unions are prohibited from financing "electioneering communications," which are defined as electronic ads that refer to a candidate for federal office that appear within 60 days of a general election or thirty days before a primary election. In Federal Election Commission v. Wisconsin Right to Life, 127 S.Ct. 2652 (2007), the U.S. Supreme Court held that the law's ban on corporate and labor financing of pre-election radio and television ads is unconstitutional as applied to certain types of commercials. The FEC is conducting a rulemaking to implement the Supreme Court's decision.

ANA Executive Vice President Dan Jaffe stated: "The blackout periods on certain ads before an election may not be of interest to all national marketers. However, the campaign finance rules are very important to a federal candidate who happens to own an auto dealership or some other business that advertises on TV or radio to consumers. Also, the First Amendment protections for commercial speech apply equally to the FEC as any other government agency. Therefore, we felt it was important for our associations to weigh in on the FEC rulemaking. Particularly since the campaign finance laws impose criminal penalties, it is critical that marketers have a clear understanding of the rules of the road in this area."

The industry comments state: "The Supreme Court's decision . . . stands as a forceful assertion of First Amendment rights, in general, and recognition of the rights of advertisers who deliver their messages through the media of broadcast, cable and satellite. The decision confirms that ads which on their face do not advocate for or against a candidate cannot be banned from the airwaves by the government. In strong and clear terms, the Chief Justice stressed that ""[w]here the First Amendment is implicated, the tie goes to the speaker, not the censor.""

Jaffe concluded: "Our industry comments proposed a broad safe harbor that captures the breadth of the Supreme Court's ruling. We believe the FEC must keep these considerations at the forefront of its analysis because the constitutional concerns determine where the lines between protected and prohibited activity can and must be drawn."

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ANA is the industry's premier trade association dedicated exclusively to marketing and brand building. Representing more than 400 companies with 9,000 brands that collectively spend over $150 billion in marketing communications and advertising, the Association's members market products and services to consumers and businesses. ANA serves the needs of its members by providing marketing and advertising industry leadership, legislative leadership, information resources, professional development and industry-wide networking. Founded in 1910, the ANA maintains offices in New York City and Washington, D.C. More information is available at /