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the candidate does not trigger FEC jurisdiction. This was the
FEC’s position in Shays, and it should be the FEC’s position
now. FECA’s unambiguous text requires no less.
Under the Multiple Candidate Allocation Regulation,
political committees must use hard money for “[p]ublic
communications that refer to one or more clearly identified
Federal candidates, regardless of whether there is reference to
a political party, but do not refer to any clearly identified nonFederal candidates.” 11 C.F.R. § 106.6(f)(1). The rule is
categorical. Even if a communication only says “Vote No on
State Ballot Initiative 123—They Waste Enough Taxes in
Washington, D.C.,” merely referring (perhaps by means of a
montage of grainy black-and-white photos) to United States
Senators of both parties with a penchant for pork-barrel
spending, the ad is per se deemed to have a federal purpose.
This is true even if those big spenders hail from distant states,
are not up for reelection for years, and the spot will not be
shown anywhere near their voters. Whether such an ad could
affect a federal race is doubtful, but the FEC goes further and
says these ads always reflect a federal purpose. In an age
when even pizza shops and used-car dealers invoke the
stereotype of wasteful federal spending to sell their wares, the
FEC’s lack of sophistication is startling.
The FEC’s approach also ignores that a state campaign
may be more effective if the campaigning group can mention
a federal official’s endorsement. Many federal politicians are
of national stature, particularly those associated with hot
button political issues. If, for example, a referendum would
make it more difficult to get an abortion, a pro-choice group
may trumpet a statement denouncing it from a prominent prochoice United States senator, while a pro-life group may
respond with a statement from an equally prominent pro-life
senator. To say, as the FEC does, that citing these statements