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FEC Leaves Unclear Path for Super PACs

Struggling to define the role of political action committees in elections, the Federal Election Commission told a Senator today that he may not raise unrestricted money for his leadership PAC but stalemated over whether a super PAC could work closely with lawmakers in producing ads.

In a spirited hearing lasting two and a half hours, the six-member commission wrestled, sometimes contentiously, with how much freedom political players now enjoy in the wake of last year’s landmark Citizens United v. FEC ruling. That case upended long-standing restrictions on corporate and union political expenditures.

Sen. Mike Lee (R-Utah) and the conservative super PAC American Crossroads asked the FEC just how much freedom they enjoy under the post-Citizens United regime.

Lee wanted to know whether his leadership PAC, the Constitutional Conservatives Fund, could set up a separate account to raise unregulated contributions so long as that account made only independent expenditures to support other candidates. Lee’s lawyer argued the normal $5,000 PAC contribution limit should not apply because the spending would be independent.

But the commission unanimously rejected Lee’s request. Commissioners pointed out that Lee’s plan flies directly in the face of the McCain-Feingold soft money ban, upheld by the Supreme Court, which imposes strict contribution limits on federal officials and on committees they establish or control, including leadership PACs.

But the American Crossroads request underscored the sharp divisions on the commission, which is split evenly between Democrats and Republicans. The conservative super PAC, set up with the help of GOP operative Karl Rove and positioned to outspend many of its rivals in 2012, had asked the FEC whether it could produce issue-oriented ads with direct input from elected officials.

The query was sparked in part by some ads that the Nebraska Democratic State Central Committee has produced in cooperation with Sen. Ben Nelson (D-Neb.). At issue is whether inviting a lawmaker in to help tape ads, even issue ads, constitutes coordination with a candidate. The Citizens United ruling freed up outside groups to spend unrestricted money only in cases where they act independently and not in coordination with candidates or parties.

“When you’re talking about issues, there’s no reason you can’t talk about issues with a Member of Congress,” said American Crossroads attorney Thomas Josefiak, a former FEC commissioner. But Josefiak acknowledged that the request raised semantic questions, given the group’s open plan to work with lawmakers.

“In the dictionary sense, you’re getting a Member involved in your ad, period. In the dictionary sense, that’s coordinated. There’s no way to get around that,” he acknowledged.

That was enough for FEC Commissioner Ellen Weintraub, a Democrat. Noting that the commission had received hundreds of public comments — thanks in part to comedian Stephen Colbert’s ongoing satire of the campaign finance laws — Weintraub said that by super PAC organizers’ own admission, American Crossroads plans to engage lawmakers in producing ads that will present the elected official in a favorable light. That turns the ads into an in-kind campaign expenditure, she said, subject to contribution limits.

“We have this very unusual request, where the requester has come in and said, ‘Yes, we are going to coordinate, and we are going to do it for the purpose of influencing an election,’” she said.

But Commissioner Donald McGahn, a Republican, strongly disagreed. The issue is not how many public comments oppose the request but whether the FEC’s coordination regulations apply, he argued. The FEC has struggled over several years to write coordination regulations that would stand up in court. Lower courts have repeatedly thrown out the regulations as too broad.

“I really just don’t see how an agency can just disregard its own regulations,” McGahn said, at one point tearing up a stack of papers in front of him to illustrate his point. “The tool is the law. You can’t just rip it out of the book.”

But the commission is deadlocked, 3-3, meaning, essentially, that American Crossroads proceeds at its own risk. A commission majority is required for the FEC to take action. Were American Crossroads to produce the ads described in its request, it would lack the shield of the FEC’s approval and could face a complaint or enforcement action.

Commission Chairman Cynthia Bauerly’s concluding remarks summed up the uncertain terrain politically active groups face going forward: “The commission is unable to reach a conclusion on this request.”

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