Legal Director Allen Dickerson on Last Week’s Advisory Opinions

CCP Legal Director Allen Dickerson wrote a column Wednesday commenting on the FEC’s response last week to the Sen. Mike Lee and American Crossroads advisory opinions:

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. That doesn’t mean the underlying law is constitutional-and I expect we’ll see litigation on precisely that point-but at least the FEC recognized that, where there’s controlling law, its duty is to explain that law to the public.

Allen continues:

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.

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