James_September-October_2026_web - Flipbook - Page 19
THERE HAVE BEEN a number of
interesting developments at the
State Ethics Commission recently,
including cases that may affect the
conducting of this year’s elections
and the enforcement of state lobbying rules.
POTENTIAL REVISION OF EXPRESS
ADVOCACY STANDARD FOR REGULATION
OF INDEPENDENT COMMITTEES.
In a preliminary ruling involving
a group that made expenditures for
ads criticizing a public official who
was also a candidate, the Commission voted to find reasonable
grounds to believe that the group
had violated the Government Transparency and Campaign Finance Act
by not registering and filing disclosure reports as an independent
committee. The Commission ruled
notwithstanding that its executive
secretary advised the Commission
members that the group’s advertisements did not include express
advocacy, i.e., the magic words of
“vote for” or “vote against.”
By way of background, the
Act defines the term “independent
committee” to mean a group that
spends money “either for the purpose of affecting the outcome of an
election for any elected office or to
advocate the election or defeat of
any particular candidate.” In other
words, independent committees
do not give money to candidates;
they instead make expenditures for
advertisements that support or oppose candidates. Such committees
are required to register with the
Commission, and must file disclosure reports.
In 1976, the U.S. Supreme Court
issued an important opinion in
Buckley v. Valeo. One of the issues
in that case was the permissible
scope of government regulations
requiring the reporting and disclosure of activities implicating First
Amendment free speech rights.
The Court concluded that, in order
to protect free speech in the context of politics and elections, it was
important to provide a clear dividing line between explicit electoral
campaign activity which may be
regulated, and general discussion
on public policy issues which may
not. In order to keep the federal
campaign finance law from being
unconstitutionally overbroad and
vague, the Court applied a limiting
factor, concluding that the statute
could be applied only to groups
that make expenditures for communications that expressly advocate
the election or defeat of a clearly
identified candidate.
The “express advocacy” standard consists of communications
that use so-called “magic words”
encouraging voters to support or oppose a particular candidate: phrases
such as “vote for,” “elect,” “cast your
ballot for,” “Smith for Congress,”
“vote against” etc. In a later opinion
issued in 2007, FEC v. Wisconsin
Right to Life, the Court extended
the scope of permissible regulation
to include communications that
do not use the magic words, but
are the “functional equivalent” of
express advocacy, meaning that a
communication is susceptible of no
reasonable interpretation other than
as an appeal to vote for or against a
specific candidate.
In Georgia, the Commission has
long applied the express advocacy
standard when regulating independent committees, including in its
rules and advisory opinions. In the
most recent case, the Commission
voted 3-2 to find reasonable grounds
to believe that a group had violated
the Act, notwithstanding that the
Commission’s executive secretary
advised that the group’s ads did not
include express advocacy. The case
will now move forward for further
proceedings. It will be interesting to
see how it proceeds, and whether
the Commission retains the express
advocacy standard if and when it
issues its final order.
POTENTIAL EXPANSION OF LOBBYING
REGISTRATION REQUIREMENTS TO
UNIDENTIFIED BOARD MEMBERS AND
OFFICERS OF ENTITIES THAT ENGAGE IN
PUBLIC COMMUNICATIONS, AND TO
S E PT E M B E R/O C TO BER 2026
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