The Federal Election Commission has been guilty recently of failing to adapt its regulations to account for several binding court decisions. But that diffidence partly evaporated last week.
On Thursday, the FEC responded to two eagerly anticipated requests for advisory opinions. At issue was the perennial question of how independent an independent expenditure (IE) must be. While the commission split on one request, it provided unanimous guidance concerning the other.
The first case involved a leadership PAC affiliated with Sen. Mike Lee (R-Utah). Leadership PACs are affiliated with candidates or officeholders, and gather donations that are, in turn, contributed to other candidates. So while Lee could not receive any of his PAC’s funds, he could direct that money to the campaigns of allied candidates.
Lee’s leadership PAC seized on this distinction, and asked the FEC whether it could raise unlimited contributions for use in IEs. Lee’s camp argued that IEs don’t give funds directly to candidates’ campaigns so they can’t be corrupting. Why should it matter, the Lee camp’s thinking goes, if the funds went to a leadership PAC? They still couldn’t be used for any of Lee’s election activity, and so they couldn’t corrupt him or anyone else.
The FEC disagreed—in a unanimous vote. And because a federal statute was directly on point, capping contributions not only to federal candidates but also their agents and any affiliated entities, the commission had little choice. That doesn’t mean the underlying law is constitutional—and I expect we’ll see litigation on precisely that point—but at least the FEC recognized that, where there’s controlling law, its duty is to explain that law to the public.
The issue presented by American Crossroads, an IE-only PAC affiliated with GOP strategists Karl Rove and Ed Gillespie, posed a more challenging question—and deadlocked the commission. In the wake of Sen. Ben Nelson’s (D-Neb.) coordination with the Nebraska Democratic Party on issue advertising, American Crossroads asked the FEC if it could make ads discussing political issues and featuring elected officials and candidates. The PAC conceded that these ads would be “coordinated” with the candidates, but argued that because they didn’t explicitly call for the candidates’ to be elected, the ads were not in-kind contributions to their campaigns.
A technical scuffle broke out over whether such ads were covered “communications,” a debate that is interesting almost exclusively to lawyers. It caused a split decision. Three commissioners viewed these ads as clearly favoring and benefitting candidates, and three viewed them as constitutionally protected attempts to discuss the issues of the day. The end result is, once again, a regulated community left without helpful guidance.
These two advisory opinions don’t directly affect grassroots activity. Lee’s leadership PAC and American Crossroads can both afford competent counsel. They will have the benefit of interpretive advice and, if necessary, the ability to challenge these rulings in court. In that sense, the legal ambiguity coming out of the American Crossroads ruling isn’t as troubling as similar confusion affecting non-connected committees.
But the division does illustrate the dangerous lack of clarity surrounding a candidate’s own First Amendment rights. Observers should note that the commission’s unanimity broke down over an issue of non-campaign (or, at a minimum, not directly campaign) speech.
Their personal campaigns aside, citizens’ rights to comment on public issues are ineffective without some platform, and it seems problematic to allow media corporations to serve as the sole outlets for such speech. Nor should running for office disqualify a person from commenting on public issues—an ability that, ostensibly, attracts individuals to politics in the first place.
Allen Dickerson is Legal Director at the Center for Competitive Politics, a nonprofit organization that advocates for Americans' First Amendment rights of speech, assembly, and petition. He was previously a litigation associate with the New York office of a leading commercial law firm.