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Defying the Odds

Defying the Odds
New book about the 2016 election.

Wednesday, December 7, 2011

FEC and Independent Expenditures

At Campaigns and Elections, Allen Dickerson writes about two recent FEC advisory opinions:
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.
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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.