Under FEC rules, communications that, "taken as a whole and with limited reference to external events, such as proximity to the election, could only be interpreted by a reasonable person as promoting or opposing the election of a candidate" qualify as express advocacy. In addition, when a group's "major purpose" is to influence the outcome of federal elections, any such group is considered to be a political committee and subject to federal registration and reporting requirements. In Real Truth About Abortion v. FEC (RTAA), RTAA challenged the FEC express advocacy rule, arguing that only the use of so-called magic words such as "vote for" or "defeat" in a message should trigger FEC reporting requirements. RTAA also challenged the FEC's method of determining when a group's major purpose is to influence elections, thereby becoming a political committee subject to regulation by the FEC. In June, the US Court of Appeals for the Fourth Circuit upheld the FEC's definition of "express advocacy" as well as the FEC regulation outlining when an organization is considered to have "influencing federal elections" as its major purpose. (A request for an injunction blocking these FEC regulations was denied in a separate case, Free Speech v. FEC, on October 3. In denying the injunction, US District Judge Scott Skavdahl cited several previous court rulings supporting campaign finance disclosure requirements, and said the problems at the FEC in clarifying how to move forward with clarifying and developing disclosure rules might have more to do with political differences among the commissioners than with the regulations themselves.)
RTAA filed a petition for certiorari with the Supreme Court, which has given the FEC until October 12 to respond to the petition. In the coming weeks, the Supreme Court will determine whether to hear this appeal. While a Supreme Court review will not impact the 2012 elections, a decision on this issue could have a significant impact on future election cycles and how organizations choose to participate in the political process.