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      FEC Record: Litigation
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      Hispanic Leadership Fund, Inc. v. FEC (New)

FEC Record: Litigation*Hispanic Leadership Fund, Inc. v. FEC* (New)September 13, 2012 On August 10, 2012, the Hispanic Leadership Fund, Inc. (“HLF”), a Virginia-based 501(c)(4) non-profit organization, filed a complaint in the U.S. District Court for the Eastern District of Virginia. The case is a pre-enforcement, as-applied challenge
    to the FEC’s application of the “clearly identified federal candidate” provision at 2 U.S.C.****§ 431(18), in the context of disclosure requirements for “electioneering communications,” 2 U.S.C.****§434(f). HLF
    also filed a Motion for Preliminary and Permanent Injunction. On July 30, 2012, HLF filed a similar complaint and motion in the U.S. District Court for the Southern District of Iowa. On August 9, 2012, that court dismissed the case for improper venue. **Background** Under the Federal Election Campaign Act(the Act) and Commission regulations, an electioneering communication is any broadcast, cable or satellite communication that 1) references a clearly identified candidate for federal office; 2) is publicly
    distributed within certain time periods before an election; and 3) is targeted to the relevant electorate. 2 U.S.C. § 434(f)(3)(A)(i); 11 CFR 100.29(a). A candidate is “clearly identified” if the candidate’s name, nickname, photograph, or drawing
    appears in the communication, or the identity of the candidate is otherwise apparent through an unambiguous reference such as “the President,” “your Congressman,” or “the incumbent,” or through an unambiguous reference to his or her status as a candidate
    such as “the Democratic presidential nominee” or “the Republican candidate for Senate in the State of Georgia.” 11 CFR 100.29(b)(2). *See also* 2 U.S.C. § 431(18); 11 CFR 100.17. On April 18, 2012, American Future Fund (“AFF”) sought an advisory opinion asking whether eight proposed television advertisements referenced “clearly identified federal candidate[s]” under the Act. In its response (Advisory Opinion 2012-19), the Commission determined that one of AFF’s proposed advertisements did not refer to a clearly identified Federal candidate, but that the two advertisements referencing “Obamacare” and
    “Romneycare” did reference clearly identified Federal candidates and would be electioneering communications. The Commission could not approve a response by four affirmative votes regarding the other five proposed advertisements. These advertisements
    used terms such as “this administration,” and “the White House” (with visual depictions of the White House), and one also included President Obama’s voice. **Complaint** HLF’s complaint states that it would like to produce advertisements similar to those proposed by AFF, but that the advertisements are not being produced due to the FEC’s “failure to correctly apply [the Act] and controlling precedent” to the five advertisements
    in the AFF advisory opinion request as to which the Commission did not approve an advisory opinion. HLF states that its proposed advertisements refer to “the administration” or “this administration;” use the phrase “the White House” or contain images
    of the White House; and that one proposed advertisement contains an audio clip of President Obama speaking. HLF claims that its proposed advertisements are not electioneering communications referring to clearly identified candidates, but are issue
    advocacy communications under *FEC v. Wisconsin Right to Life*, 551 U.S. 449 (2007), that “address substantive policy issues facing
    the federal government.” HLF claims that the Supreme Court’s decision in *Buckley v. Valeo*, 424 U.S. 1 (1976) provided a specific definition of “clearly identified federal
    candidate,” but that the FEC failed to apply this definition in the AFF advisory opinion. As a result, HLF claims that the FEC’s pre-enforcement application of the “clearly identified federal candidate” standard to similar proposed advertisements
    is inconsistent with law and burdens its constitutional rights. **Relief** HLF seeks a permanent injunction against the FEC’s enforcement of 2 U.S.C § 431(18), 2 U.S.C. § 434(f), 11 CFR 100.29(a) and 11 CFR 100.29(b)(2) as applied to its proposed activities and a declaration that such enforcement would be unlawful, as well as
    an award of nominal damages, costs and attorneys fees. **Resources:** *Hispanic Leadership Fund, Inc. v. FEC*litigation page
            Brochure: *Electioneering Communications*


Read next: James v. FEC (New litigation)
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This information is not intended to replace the law or to change its meaning, nor does this information create or confer any rights for or on any person or bind the Federal Election Commission or the public. The reader is encouraged also to consult the Federal Election Campaign Act of 1971, as amended (52 U.S.C. 30101 et seq.), Commission regulations (Title 11 of the Code of Federal Regulations), Commission advisory opinions and applicable court decisions.


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