Consultants seeking guidance from the FEC say commissioners are floundering over questions about existing technology. The deadlock has some election lawyers calling for a rulemaking, which could modernize what some believe are increasingly outdated regulations.

Critics of the FEC point to its ruling last month in the Revolution Messaging case as an example of its failure to grasp the technology used by today’s campaigns. In that case, the Democratic mobile advertising firm sought a disclaimer exemption for its products, similar to what water towers, bumper stickers and campaign buttons receive. After a spirited debate during a Feb. 27 hearing, the FEC was tied 3-3 over the firm’s request for an advisory opinion. 

Scott Goodstein, CEO of Revolution Messaging, was furious.

"We thought they were being petty and childish and not actually focused on the technology of today," he tells C&E. "You have feisty people on the Commission who don't understand technology and want to be gridlocked worst than Congress."

He said seeking an advisory opinion was "a complete waste of time."

"I think the Commission needs to evolve again and that you need a Commission that understands how modern forms of communication are affected by the political discourse," says Goodstein. "Those who don't understand where technology is going should retire. If they don't, they're doing a disservice to the American public."

Some election lawyers say it's time to convene a rulemaking, similar to what the FEC did in 2006.

"The FEC did a decent job with the Internet rule making it engaged in post-[Bipartisan Campaign Reform Act of 2002], and a rulemaking that settled these Internet-connected advertising questions in a reasonable manner would be welcome," says Jason Torchinsky, partner at Holtzman Vogel.

Michael Toner, a former FEC chairman, agrees. Moreover, he’s sympathetic to the plight of consultants like Goodstein who make the effort to seek an advisory opinion only to receive a split decision that fails to provide guidance.

"I thought it was an unfortunate outcome [in the Revolution Messaging case] because I don't see a lot of abuses in this area," says Toner, now a partner at Wiley Rein.

What abuses there are, though, are likely to continue unchecked by the FEC.

"When you have a 3-3 deadlock in an advisory opinion, you're probably not going to see enforcement action," he says. "I think there's always a danger some of the activity will go underground."

Whether its underground or simply a status quo for bad actors, Goodstein agreed that consultants won't have to alter how they do business. "The FEC has now said basically, 'We're not sure what our rules are on this,'" he says.

Meanwhile, Marc Elias said there are two ways to interpret the 3-3 decision. The no-vote commissioners may believe that as a policy matter, the disclaimer exemption shouldn't be permitted. But another interpretation is that the FEC doesn't have the regulatory structure to implement the change granting the advisory opinion would require, and that's why the commissioners voted no.

"If it's the latter, there's room for rulemaking," says Elias, chairman of the political law group at Perkins Coie. "If it's the former, nothing moves. You end up basically in the same place."