WASHINGTON, D.C. – Leigh Brown, 9th congressional district candidate, is suing the Federal Election Commission after she was forced to remove radio advertisements for her real estate business following the decision of the Commission’s lone Democratic commissioner to block the advertisements from running.
For more than a decade, Leigh Brown has run these advertisements for her real estate company. The advertisements are vital to Brown’s business, helping her and her team attract business in a competitive market with more than 10,000 local realtors.
These advertisements help support the firm itself and the livelihood of the five agents and four administrative staff that make up the team.
On March 21, eight days after filing to run for office, Brown submitted an advisory opinion request to the FEC, asking the commission to conclude the non-political advertisements did not qualify as electioneering communications.
The FEC refused to grant Brown the right to continue airing the same advertisements that she has aired for the past 13 years. The lone Democratic commissioner, refusing to act in keeping with established FEC and court precedent, voted to force Brown to take down the advertisements.
“The livelihood of people who rely on me to help generate business and client and customers is at stake here,” Brown said. “Right now is the busiest time of year in real estate. If my ads are off the air then it disproportionately hurts my business because this is when we have the most incoming phone calls and there’s more houses being listed and sold.”
The Federal Election Campaign Act allows the FEC to exempt certain communications from the electioneering communication definition, as long as they do not promote, support, attack, or oppose a candidate.
According to legislative history, the exemptions are routinely used for communications plainly and unquestionably unrelated to the election – which Brown’s business advertisements are. The advertisements identify Brown and promote her as a real estate agent, never once referencing her candidacy or office sought.
“It’s obviously real estate-related material and I’ve been doing these ads for over a decade,” Brown said. “Why it’s suddenly an issue when I’m running for office doesn’t make any sense to me.”
Brown continued, “This why you don’t see small business owners run for office because the bureaucrats are going to say, ‘Look, you’ve got to choose between your business and being a public servant,’ and that’s not right. The people who work for me, they’re not running for office so why should they be negatively impacted just because some bureaucrat somewhere doesn’t want me to advertise?”
In Hispanic Leadership Fund v. FEC, the U.S. District Court for the Eastern District of Virginia ruled that when a speaker is not otherwise identified, whether the voice alone is sufficient to constitute a reference of a clearly identified candidate depends on if the audience recognizes the voice.
In this case, the court found that former President Barack Obama’s voice was not recognizable, and therefore the advertisement did not qualify as electioneering communication. In Brown’s case, precedent set in Hispanic Leadership Fund v. FEC was neglected. The FEC took issue with both Brown’s voice being used and her name being referenced, although it was only in the context of her business – Leigh Brown & Associates.
“I knew that, if elected to Congress, I would have to re-consider my active role in my real estate company,” Brown said. “But, to be forced out of business while campaigning – that I didn’t plan for.”