Updated: Dec. 1, 1:05PM
The Federal Election Commission deadlocked on a request by Karl Rove’s “super PAC” to allow advertisements shot in coordination with candidates for federal office to be considered uncoordinated and not amount to in-kind donations. A motion in support of a draft opinion to reject the request failed on a three-to-three party line vote.
Republican FEC member Donald McGhan lead the questioning of a lawyer for American Crossroads, the conservative “super PAC” that is requesting to run advertisements featuring federal candidates for office.
“The ultimate question to ask is ‘are these coordinated?’ Now it’s a little bit… kind of funny because, well, you’re saying it’s fully coordinated and you’re asking if they’re coordinated, ha ha ha,” McGhan said, referring to Stephen Colbert’s mockery of the American Crossroads request. “On the face of the [advisory opinion] request, it’s kind of tough to answer the question ‘are fully coordinated ads coordinated?’ anyway other than, you know, the obvious way to answer, so maybe you can explain to me what you were trying to say there.”
Tom Josefiak, a lawyer for American Crossroads and former chairman of the FEC, responded: “Well in the dictionary sense, you’re getting a member involved in your ad. And in the dictionary sense, that’s coordinated, there’s no way to get around that. But what we were referring to, is it coordinated in the statutory sense, in the regulatory sense that would actually trigger some sort of a requirement, an independent requirement or a contribution requirement.”
Josefiak continued: “I think those are the two distinctions there. Certainly, they are coordinated, and we’re using that in the common, lay sense. There’s no question about that, as I think the facts would indicate. There’s no way to say it’s not when you have a member of Congress engage in actual preparation of an ad and engage in part of it — you could not say from a lay perspective that it’s not coordinated.”
The three Democratic members of the FEC lined up behind a revised “draft D” of an advisory opinion which found that American Crossroads’ ad “intended to improve the public’s perception of a candidate for Congress in the upcoming Federal election, which is paid for by a person other than the candidate or the candidate’s authorized committee and both features and is otherwise fully coordinated with the candidate (with or without reference to the candidate’s opponent[s], would constitute an in-kind contribution to the candidate.” One Republican member suggested that the American Crossroads request had simply been too honest about the fact that they were trying to impact the 2012 elections.
So what’s next? The decision basically leaves it up in the air, and it isn’t yet clear how American Crossroads would proceed. The takeaway is that regardless of whether super PAC ads featuring candidates are legal, the FEC would be unlikely — in its current form — to actually impose any penalties if groups decide to coordinate with candidates.
Late update: Campaign Legal Center FEC Program Director Paul S. Ryan weighs in with this statement:
The result of today’s deadlock is that American Crossroads did not get the green light it sought from the FEC to fully coordinate ads with candidates. Instead, any ads run by American Crossroads that feature federal candidates will be subject to legal scrutiny and may be deemed illegal.
American Crossroads’ request was absurd and flew in the face of decades of Supreme Court decisions upholding laws to prevent political corruption. The Supreme Court has long recognized the importance of contribution limits to preventing corruption, and that expenditures coordinated with candidates must be treated as contributions in order to prevent easy circumvention of the limits. We applaud Chairwoman Bauerly and Commissioners Weintraub and Walther for their efforts today to maintain the integrity of the contribution limits.
