First ruling of a hamstrung FEC


Staff at the Federal Election Commission has issued an advisory opinion based on requests from and FreeCause Inc. The SpeechNow question asked for opinion of the subject matter of four proposed advertisements and on whether they were subject to donation caps.

The draft of the advisory opinion (AO) stated that the ad material did indeed "constitute express advocacy," and that the organization would be considered a political committee upon receiving or spending in excess of 1K.

The AO must be ratified by the commissioners, but an acute failure of the administration and Congress to see eye-to-eye has resulted in the existence of only two of six commissioners actually on the job. Four are needed to approve an AO. In this case, Chairman David Mason (R) believes that the staff got most of the AO right, but that there is no need to cap the organization’s contributions. Democrat Ellen Weintraub said there was nothing ambiguous about staff’s interpretation and that they were perfectly correct and donation restrictions apply.
SpeechNow will receive a copy of the draft, notification of the vote, and an explanation that the whole this doesn’t count.

RBR/TVBR observation: The AO may or may not have been ambiguous, but the end result certainly is. This should be a matter of some concern to, since organizations on both sides operating as 527s back in 2004 were eventually fined for behaving like PACs, even though the FEC dragged its feet into issuing an opinion on that matter when it would have actually been instructive and helpful. Continued refusal to agree on FEC nominees, which may be deliberate, could contribute to an anything-goes melee in 2008, even if it results in fines not levied until all the votes have been counted.