The Federal Election Commission is seeking comment on changes to campaign finance rules that could narrow the exemptions from prohibited "electioneering communications" and change the definition of "publicly distributed" to include PSAs by excluding unpaid as well as paid TV or radio appearances by a federal candidate.
The current definition of "publicly distributed" is "aired, broadcast, cablecast or otherwise disseminated for a fee through the facilities of a television station, radio station, cable TV system or satellite system."
A district and federal appeals court have since ruled that the "for a fee" exemption exceeded the FEC's authority, since it could allow elsewhere-prohibited communications that "promote, attack, support, or oppose a federal candidate."
The D.C. Court of Appeals, for instance, said that excluding a federal candidate from, say, a broadcast promoting a blood drive for 90 days out of a year would not be unreasonable, given that the blood drive appearance could be seen as promoting the candidate by associating him withe the public-spirited campaign.
The FEC wants comment on whether removing the "for a fee" language and subjecting PSAs to the electioneering restrictions would discourage broadcasters from airing them.
The FEC is also considering narrowing or even eliminating, the "electioneering" exemption for national and local charities and nonprofits.
The controversial status of so-called 527s, like Swift Boat Veterans for Truth, is not addressed in the notice of proposed rulemaking issued Aug. 24, which is targeted to addressing the specific court findings.
Comments are due Sept. 30 and a hearing is slated for Oct. 19.
A spokeswoman for The Ad Council was not available for comment on whether it would file comments on the PSA threat. The Council coordinates the donation of broadcast airtime and ad industry creative for a host of PSA campaigns on everything from literacy to drunk driving.