FEDERAL ELECTION COMMISSION 

WASHINGTON, D.C. 20463 

Pursuant to Directive 69, the Office of Compliance and the Office ofGeneral Counsel submitted 

a memorandum to the Commission dated July 26,2010 seeking guidance as to whether certain 

advertisements broadcast by the audited committee contained express advocacy and were 

therefore independent expenditures. Because the Commission was unable to resolve the issue 

within 60 days ofthe memo, the Office of Compliance, pursuant to Directive 69, proceeded with 

the matter. The interim audit report is consistent with the analysis in the Directive 69 memo. 
F^DER^•:ELeCT!ON 

SFCI'.LTA^l^' 

FEDERAL ELECTION COMMISSION 

WASHINGTON. D.C. 20463 

MEMORANDUM 

TO: 

THROUGH: 

FROM: 

20;3 J'Jl 2b P 5-. 03 

July 26, 2010 

SEHSITWE 

The Commission 

D. Alec Palmer 

Acting Staff Director 

Patricia Carmona 

Chief Compliance Officer 

Joseph F. Stoltz 

Assistant Staff Diri^df 

Audit Division 

Alex Boniewicz 

Audit Manage 

Audit Division 

Tesfai Asmamaw 

Lead Auditor 

Audit Division 

Thomasenia P. Duncan 

General Counsel 

Lawrence L. Calvert, Jr. ' 

Associate General Counsel ^ 

General Law and Advice ^ 

Lorenzo Holloway ^sjb^— 

SUBJECT: 

Assistant General Counsel 

Public Finance and Audit Advice 

Margaret J. Forman ^Y\^ ^ 

Attomey 

Draft Interim Audit Report on Freedom's Defense Fund (LRA 810) 

Pursuant to Directive 69, the Office of Compliance ("OC") and the Office of General 

Counsel ("OGC") seek the Commission's guidance on issues arising in the audit of Freedom's 
Memorandum to The Conimission 

Draft lAR on Freedom's Defense Fund (LRA 810) 

Page 2 of6 

Defense Fund, a nonconnected political committee. The Audit Division has submitted a draft 

Interim Audit Report ("draft lAR") to OGC for comments. The draft lAR has one finding: 

Disclosure of Independent Expenditures. This finding presents an issue as to whether six 

advertisements expressly advocate the election or defeat of clearly identified candidates.' After 

OGC reviewed the draft lAR, OGC and OC determined that the text of some of the 

advertisements, particularly the "Obama's Friends" series of ads, may present close questions. 

Accordingly, OGC and OC seek the Commission's guidance. 

We recommend that the Conimission conclude that one of the advertisements contains 

express advocacy. This will mean that disbursements for the advertisement should have been 

reported as independent expenditures. However, we recommend that the Commission conclude 

that the remaining five ads do not constitute express advocacy, and therefore did not have to be 

reported as independent expenditures. 

I. STATEMENT OF THE ISSUE: WHETHER ADS CONSTITUTED 

INDEPENDENT EXPENDITURES 

There are six ads at issue. The Committee reported most disbursements relating to these 

ads as operating expenditures instead of independent expenditures." To be an independent 

expenditure, the ad must expressly advocate the election or defeat of a clearly identified 

candidate. 2 U.S.C. § 431(17). All ofthe disbursements were made with federal funds, and the 

auditors have not indicated that there is any evidence that any of the ads were coordinated with 

any candidate, candidate's committee, or party committee. Accordingly, at issue is whether the 

Committee reported these expenditures properly and whether it should have filed 24-hour and 

48-hour notices, which it did not. 

A. "Murtha** Ad Contains Express Advocacy and Should Have Been Reported As 

an Independent Expenditure. 

The "Murtha" ad begins with a narrator's declaration that "Barack Obama and Jack 

Murtha have little respect for the people of Westem Pennsylvania." It then contains audio clips 

of Obama and U.S. Representative John P. "Jack" Murtha ("Murtha") making negative 

statements about Westem Pennsylvanians. Murtha is heard saying: "There's no question lhat 

Westem Pennsylvania is a racist area," and Obama is heard saying that Pennsylvanians "get 

bitter and cling to guns and religion." Next, while the text on the screen says "MURTHA .AND 

OBAMA DON'T REPRESENT OUR VALUES," the narrator says "On election day, tell Jack 

Murtha and Barack Obama what we think of them." The narrator ends with the statement "Vote 

' Video flies of the advertisements are in Voting Ballot Matters. 

^ The Committee reported S229,924 in media disbursements as operating expenditures. The Commitiee 

reporled S 19,001 in media disbursemenls for one ofthe ads which did not constitute all reported disbursements 

related to the ad, infra n. 3 -- as independent e.xpenditures. but the Committee did not provide the auditors with 

documentation for these expenditures. Additionally, the Committee has not provided documentation for S37.499 in 

additional media expenditures. 
.Memorandum to The Commission 

Draft lAR on Freedom's Defense Fund (LRA 810) 

Page 3 ofC 

Republican" while a picture ofthe Republican presidential ticket (John McCain and Sarah Palin) 

appears, and the text on the screen says "VOTE REPUBLICAN TUESDAY, NOVEMBER 4TH." 

An ad satisfies the requirements for express advocacy pursuant to the Commission's 

regulations at 11 C.F.R. § 100.22(a), if it uses phrases such as "vote for the President," "vote 

against Old Hickory" or "defeat" accompanied by a picture of one or more candidate(s), "reject 

the incumbent," or contains campaign slogans or individual words, "which in context can have 

no other reasonable meaning than to urge the election or defeat of one or more clearly identified 

candidaie(s)". 11 C.F.R. § 100.22(a); SeeBuckleyv. Valeo. 424 U.S. 1, 44 n. 52 (1976): .scvalso 

FEC V. Massachusetts Citizens for Life Inc. ("MCFL ") 479 U.S. 238, 249 (1986). An ad also 

satisfies the requirements for express advocacy pursuant to section 100.22(a) if it "is marginally 

less direct than 'Vole for Smith,' [which] does not change its essential nature." FEC v. MCFL. 

479 U.S. 238, 249(1986). 

The "Murtha" ad satisfies the requirements of express advocacy pursuant to section 

100.22(a). First, it expressly advocates the election of McCain and Palin. Much like the 

brochure at issue in MCFL. which urged voters to "Vote Pro-Life" and "identifie[d] and 

provide[d] photographs of specific candidates" who were pro-life, 479 U.S. at 249, the 

advertisement here urges the viewer to "Vote Republican" at the same time that it displays under 

that text the pictures of McCain and Palin. "[l]t provides in effect a specific directive: vote for 

these [pictured] candidates. The fact that this message is marginally less direct than 'Vote for 

Smith' does not change its essential nature." Id. Taken in context, the ad can have no other 

reasonable meaning than to urge the election ofthe clearly identified Republican presidential and 

vice presidential candidates whose images appear behind the superimposed phrase, "Vote 

Republican." We, therefore, conclude that this ad expressly advocates the eleciion of McCain 

and Palin. For this reason alone, disbursements made relating to this ad should have been 

reported by the Committee as independent expenditures. 

The "Murtha" ad also expressly advocates the defeat of Murtha (and. for that matter. 

Obama). After asserting that Murtha and Obama "have little respect for the people of Western 

Pennsylvania" and playing audio clips in support of that assertion, the narrator says: "On 

election day, tell Jack Murtha and Barack Obama what we think of them." It then immediately 

tells the viewer how to do that: the narrator says, "Vote Republican" and the text on the screen 

says "Vote Republican on Tuesday, November 4." Taken in context, the ad can have no other 

reasonable meaning than to urge the defeat of Murtha and Obama; the only specified method the 

viewer is given for telling Obama and Murtha "what we think of them" is to do so "on election 

day" by voting Republican, which necessarily would include voting against both Murtha and 

Obama. We, therefore, conclude that this ad expressly advocates the defeat of Murtha and 

Obama within the meaning of 11 C.F.R. § 100.22(a). 

This advertisement also contains express advocacy within the meaning of 11 C.F.R. 

§ 100.22(b). An advertisement satisfies the requirements for express advocacy pursuant to the 

Commission's regulations at 11 C.F.R. § 100.22(b) if, when taken as a whole and with limited 

reference to extemal events such as the proximity to the election, it could only be interpreted by 

a reasonable person as containing advocacy of the election or defeat of one or more clearly 

identified candidates because (1) the electoral portion is unniistakeable, unambiguous, and 
Memorandum to The Commission 

Draft lAR on Freedom's Defense Fund (LRA 810) 

Page 4 of 6 

suggestive of only one meaning and (2) reasonable minds could not differ as to whether it 

encourages actions to elect or defeat the clearly identified candidates or encourages some other 

kind of action. Here, there is a specific reference to what the viewer should do "on eleciion 

day," so the electoral portion is unmistakable, unambiguous, and suggestive of only one 

meaning. Moreover, because voters are told to "Vote Republican" while the video shows a 

picture of McCain and Palin, and because they are told that doing so is the way to "tell Jack 

Murtha and Barack Obama what we think of them." there is no doubt as to the action the viewer 

is urged to take. 

For these reasons, the costs ofthe "Murtha" ad should have been reported as independent 

expenditures and the appropriale 24- and 48-hour notices should have been filed. ^ Further, we 

conclude that because the advertisement contained express advocacy of the election or defeat of 

candidates in two separate Federal elections, the Committee should have " allocate[d] the 

independent expenditures among the different races, based on a time or space analysis" pursuant 

to 11 C.F.R. § 106.1(a). AO 2010-10 (NRL PAC). The transaction should be reported on FEC 

Fomi 3X, Schedule E, with appropriate memo entries naming the federal candidates supported or 

opposed by the expenditure. Id. 

B. The 'Triends** Ads Do Not Contain Express Advocacy, and Therefore the 

Committee Was Not Required to Report Disbursements For Them as 

Independent Expenditures 

We reach a different conclusion with respect to the five remaining ads. We conclude that 

these ads do not contain express advocacy. 

The committee ran a series of ads in close proximity to the 2008 presidential election that 

criticized certain alleged associations of Barack Obama. Typical was the following: 

(with the superimposed text, "BILL AYERS radical terrorist," followed by 

"AYERS' TERRORIST BOMBINGS;" a quote from a news article, "OBAMA'S 

RELATIONSHIP WITH AYRES A VIVID MILEPOST"; and finally, "[Y]ou 

should know who Barack Obama's friends are.") 

Meet Bill Ayers, founder of a radical terrorist organization. Ayers was 

responsible for bombings in New York City, at the Pentagon, and in the United 

States Capitol. Ayers is a friend and ally of Barack Obama. He even launched 

Barack Obama's state senate campaign from his own home. You should know 

who Barack Obama's friends are. Freedom's Defense Fund is responsible for the 

content of this advertising. 

The Committee reported S60,397 of expenditures related to this ad as operating expenditures, and an 

additional S 19.001 of expenditures as independent expenditures. When the auditors aslced the Committee treasurer 

why some of these expenditures were reported as operating expenditures and some as independent expenditures, the 

treasurer indicated that he had been told that the ads did not expressly advocate the election or defeat ofa candidate, 

and that he did not know why the S 19.001 was reported as independent e.xpenditures. 
.Memorandum to The Commission 

Draft lAR on Freedom's Defense Fund (LRA 810) 

Page 5 of6 

Other advertisements with virtually the same format linked Obama to Raila Odinga, 

identified as "the Communist leader of Kenya;" Tony Rezko, identified as "convicted of bribery, 

money laundering, and 12 counts of mail and wire fraud;" and the Rev. Jeremiah Wright, quoted 

as saying "not God bless America, but God damn America." An additional advertisement with a 

somewhat different format showed a clip of Obama speaking in which Obama praises Detroit 

Mayor Kwame Kilpatrick, while scrolling superimposed on the image is a list of crimes and 

misdeeds supposedly attributable to Kilpatrick. Each advertisement contains either the written or 

spoken exhortation (or both), "You should know who Barack Obama's friends are." None 

contain any other exhortation of any sort. 

Nothing in these ads would constitute express advocacy under 11 C.F.R. 100.22(a). 

We, therefore, tum to section § 100.22(b). 

The ads contain some elements of express advocacy under Section 100.22(b). In 

particular, they attempt to attack Obama's character by alluding to negative acts or statements by 

persons identified as Obama's "friends." See Explanation and Justification, E.\pressly 

Advocating. 60 Fed. Reg. 35295 (July 6, 1995) (Communications discussing or commenting on a 

candidate's character, qualifications, or accomplishments can be considered express advocacy, 

under certain circumstances). The ads make an unambiguous reference to Obama's Judgment by 

negatively describing people with whom he allegedly had a significant connection or 

relationship. According to one of the ads, Obama looked to "Bill Ayers, Radical Terrorist," for 

support in a campaign for state Senate. Another ad asserted that Obama received significant 

campaign contributions that were raised by Tony Rezko, who, according to the ad, was convicted 

of bribery, money laundering, and twelve counts of mail and wire fraud, and who faced a life 

sentence. Similariy, in another ad, Obama makes a speech praising Mayor Kilpatrick, who is 

shown in a photograph while various criminal charges roll down the screen. In another ad, 

Obama is alleged to have campaigned for Raila Odinga, described in the ad as a Communist 

leader. And finally, another ad depicts Reverend Jeremiah Wright, who, according to the ad, 

says the following about America: "God Damn America...." Further, according to that ad. 

Reverend Wright was Obama's pastor for 20 years, performed Obama's marriage ceremony and 

baptized Obama's children. The ads then state that "You should know who Obama's friends 

are." Thus, Obama is linked, negatively, to those with whom he associated. 

Because these ads are intended to link Obama negatively with the persons depicted in the 

ads, they attempt to attack Obama's own character by depicting the assertedly bad actors that he 

has chosen as his "friends." 

However, these advertisements are not express advocacy because they do not contain an 

electoral portion that is "unmistakable, unambiguous, and suggestive of only one meaning," and 

with one possible exception they do not contain any electoral portion at all. There is not an 

allusive reference to the office Obama seeks or to character traits or duties associated with it. 

Compare MURs 5511 and 5525 (Swift Boat Veterans and POW's for Truth), Conciliation 

Agreement para. 15 (ads expressly advocated defeat of Democratic presidential nominee John 

Kerry when they stated Kerry "lacks the ability to lead," "cannot be trusted," and "gave [aid] and 

comfort to the enemy.)" The closest any of the advertisements come to containing an electoral 

portion is the Rezko advertisement. That ad refers to Rezko as a campaign donor and fundraiser. 
Memorandum to The Commission 

Draft lAR on Freedom's Defense Fund (LRA 810) 

Page 6 of6 

including the text "life in prison for Obama's fundraiser." without explaining that Rezko's 

activity was in connection with elections earlier in Obama's career rather than the presidential 

election. But even that advertisement, like all of the others in this group, urges the viewer to do 

no more than "know who Barack Obama's friends are." There is no explanation as to why this 

information is important or what the viewer is supposed to do with it. The ads do not reference 

the fact that Obama is a candidate. Because the ads neither contain an electoral portion nor urge 

the viewer to do more than "know who Barack Obama's friends are," they do not contain express 

advocacy as defined in section 100.22(b). We, therefore, conclude that disbursements for these 

ads were not required lo be reported as independent expenditures. 2 U.S.C. § 431(17). 

II. RECOMMENDATION 

We recommend that the Commission conclude that the "Murtha" advertisement contains 

express advocacy, and thus disbursemenls for the advertisement should have been reported as 

independent expenditures. However, we recommend that the Commission conclude that the 

remaining five Obama "friends" advertisements do not constitute express advocacy, and 

therefore would not support a finding lhat commiltee should have reported them as independent 

expenditures.