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New Opinion Spells Out State Election Law

State election officials have begun spelling out how Florida’s jumbled election laws will work in the wake of a federal ruling that struck down a law aimed at shadowy groups that run attack ads.

Donald Palmer, director of the state Division of Elections, issued a three-page opinion last week that attempts to answer questions about so-called electioneering communication organizations, or ECOs, that are also known as 527s due to the section of federal tax law that covers them.

One clear consequence of the opinion: Lawmakers and other elected officials who run or control their own committees are free to send money that they collect into the coffers of organizations that now do not have to report any details until after Election Day.

Palmer wrote that Florida law “clearly does not prohibit a former ECO from receiving funds from political committees or committees of continuous existence.” Political committees and CCEs are two types of political organizations that remain regulated and have limits on either donations or expenses.

But Mark Herron, a veteran elections and ethics attorney based In Tallahassee, said the new opinion means that lawmakers can steer money they collect for their CCEs into these unregulated organizations as long as legislators don’t control or solicit money directly for the group. No one will know much about the organization until it files reports with the IRS. IRS guidelines don’t require reports for the final quarter of the year until the end of January.

Florida lawmakers first went after electioneering communication organizations in 2004 as an attempt to shine a light on groups that run ads either praising or attacking candidates. These groups did not fall under state laws as long as they did not use the magic words “vote for” or “vote against.” A federal judge in May, however, ruled that the law requiring these groups to register with the state and report their donations was a violation of First Amendment rights.

The Division of Elections issued its latest opinion on behalf of Tell the Public the Facts Inc., an electioneering communication organization that has been involved in several legislative races, including the bitter GOP primary between incumbent Sen. Alex Villalobos and former Miami –Dade School Board member Frank Bolanos in 2006. The Miami-based group also sent out mailers to voters last fall criticizing State Sen. Mike Fasano, R-New Port Richey.

Ron Meyer, a Tallahassee attorney representing the group, said the request was made to state division election officials to clear up “confusion” that existed after the federal ruling. He said that the request came before the state opted against appealing the ruling in late June.

Meyer said none of the items in the opinion surprised him now that the state law has been declared unconstitutional. The Aug. 4 opinion also states that the ECOs are no longer required to file reports on contributions or expenses although it does say that the “state will continue to accept such filings if the ECO desires to file them.”

The elections opinion also states that ECOs may terminate their registration with the state upon request.

One big item that the opinion does not address is whether or not candidates are allowed to coordinate with the now unregulated ECOs. A previous Division of Elections opinion stated that there was nothing that prevented those who run an ECO from consulting and planning with a candidate which ads to run and in which media markets to run the ads.

Jennifer Krell Davis, a spokeswoman for Secretary of State Kurt Browning, said that since ECOs were now unregulated there was nothing in the law that would change the 2005 opinion.

“It’s not going to negate the previous opinion,’’ said Davis.

Meyer said he doesn’t disagree with the May ruling that the previous law went too far, but he said he believed the Legislature could still come back in 2010 and adopt a narrower set of requirements for ECOs.

“I think there’s still some room to regulate the field,’’ said Meyer.

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