For a minute, forget your political stripe and read the copy for the following ad:
“President Obama opposes the Government Litigation Savings Act. This is a tragedy for Wyoming ranchers and a boon to Obama’s environmentalist cronies. Obama cannot be counted on to represent Wyoming values and voices as President. This November, call your neighbors. Call your friends. Talk about ranching.”
Does that sound like a campaign ad or an issue ad?
The answer could affect small, grassroots groups across the United States and their ability to exercise free speech.
That’s according to attorneys for a Wyoming group called Free Speech, who were in federal court in Casper on Wednesday, arguing before a judge that a section of federal election law needs to be thrown out.
Free Speech, with the Cheyenne-based Wyoming Liberty Group, wants the ads, including the rancher ad, to be considered issue ads instead of campaign ads.
Technically, ads for or against a candidate are “express advocacy.”
Any express advocacy speech would make small groups like Free Speech, which only has three members, fall under the rules of political action committees if they’ve raised $1,000, said Stephen Klein, an attorney for the Wyoming Liberty Group.
The Federal Election Commission has a host of rules for PACs, like requiring them to report expenses in 10 different categories monthly or quarterly, decline contributions from foreign donors and avoid working with political candidates.
Small groups cannot afford attorneys and accountants to help them follow such rules, which ultimately means they cannot exercise their First Amendment rights, Klein said.
Free Speech’s case ended up in the courtroom of U.S. District Court Judge Scott Skavdahl after Free Speech and the Wyoming Liberty Group concluded they couldn’t get clarity from the six-member FEC.
Free Speech submitted its ads to the FEC for an opinion on whether they would be considered express advocacy speech. At an April hearing in Washington D.C., the commission was split in its opinion of some of the ads — including the ranching ad.
Attorneys for Free Speech and the Wyoming Liberty Group decided the law on express advocacy needed to be thrown out and sought a preliminary injunction preventing the FEC from enforcing the express advocacy provision as part of a larger lawsuit on the matter.
The FEC sent attorneys from Washington D.C. to Casper to argue their side before Skavdahl.
“When there’s a 3-3 tie, you have a green light?” the judge asked about whether Free Speech could broadcast the ads.
“That’s right,” FEC attorney Erin Chlopak said.
However, the FEC could revisit the case later.
“It’s not a guarantee of immunity [to run the ad?]” Skavdahl said.
“There’s no guarantee,” Chlopak said.
Free Speech would like to broadcast their ads, especially the ranching ad, since the U.S. Department of Labor recently made changes to laws governing child labor on farms. Free Speech intended to spend about $1,000 for 60 radio airings of the ranching ad.
Skavdahl said he was aware that it’s an election season.
“I will do my most to render a timely decision,” he said.