The Tie Didn’t Go to the Speaker

Today at the Club for Growth Blog, David Keating pokes fun at the Federal Election Commission by wondering whether the Supreme Court’s instruction — "Where the First Amendment is implicated, the tie goes to the speaker, not the censor" — will prevail upon one or more Commissioners to switch their votes if the FEC finds itself deadlocked on a requested advisory opinion.

Specifically, Keating’s witty suggestion was prompted by an Advisory Opinion Request submitted by the National Right to Life Committee (NRLC), concerning two proposed ads that refer to Barack Obama but do not urge his election or defeat.  Indeed, the proposed ads do not really even comment on the current campaign, but instead question Obama for misrepresenting his responsibility "for killing a bill to provide care and protection for babies who were born alive after abortions."

Nevertheless, since the NRLC is a (non-profit) corporation, the organization wanted the FEC’s advice — and assurance — that it would not run afoul of federal campaign finance laws by using general treasury funds to broadcast the ads.  (As a side note, the Center for Competitive Politics commented on the issue , too, noting why the FEC should permit both ads.)

Well, the FEC met this morning and, just as Keating had predicted, the Commissioners split 3-3, thus failing to issue any advice at all.  And, as was the premise of Keating’s comic conundrum, the FEC’s deep division means, at least for now, that the NRLC can only run the ads at its own risk.

In fact, as is often the case when the FEC deadlocks, the tie has done the absolute worst thing it could do — ask speech to wait.  After all, the position the FEC has put the NRLC in is untenable — either the NRLC can wait however long it takes for a majority of the Commissioners to agree that the ads are permissible, or the NRLC can go ahead with the hope that a majority of the Commissioners never agrees at some point in the future that the ads were impermissible.  That’s because nothing prevents the FEC from coming after you later even if the Commissioners couldn’t agree to advise you now.

Of course, the NRLC wants to speak now, which is why it sought advice from the FEC in the first place.  Thus, the continued choice between waiting for permission and risking enforcement doesn’t help, meaning the FEC’s lack of action today is nothing short of a loss.

So there might have been a tie at the FEC, but that tie didn’t go to the speaker.

The Center for Competitive Politics is now the Institute for Free Speech.