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FEC Deadlocks (Again) on Guidance for Big-Money Super PACs

Can an ad that’s “fully coordinated” with a candidate count as uncoordinated spending by a supposedly independent group? The FEC commissioners bickered but couldn’t collectively decide.

The Super PAC American Crossroads was founded by Karl Rove (AP file photo/Northwest Florida Daily)

A bold request from American Crossroads, a conservative Super PAC founded by Karl Rove, apparently struck a nerve with hundreds of people who don’t typically pay much attention to the more obscure aspects of campaign-finance law.

The super-spending group asked the Federal Election Commission whether it could produce an ad that was “fully coordinated” with a candidate — without having it count as a coordinated communication under federal election law.

Coordination, as we’ve noted, is the one crucial restriction on Super PACs, groups that are otherwise unfettered by the limits that apply to candidate campaigns and traditional PACs. Provided they don’t coordinate their spending with candidates, Super PACs can raise as much money as they want from anyone they want, even corporations and unions.

The request by American Crossroads was prominently parodied by comedian Stephen Colbert, who was joined by nearly 500 others in flooding the FEC with comment letters that, as one commissioner put it, were “not very complimentary” about what American Crossroads was trying to do. The commission is usually “lucky to get one or two comments,” said Commissioner Ellen Weintraub, a Democrat.

Yesterday, Weintraub and the five other FEC commissioners met to decide whether a “fully coordinated” ad could be considered uncoordinated. The result? A 3-3 deadlock.

“The commission is unable to reach a conclusion on this request,” said the FEC’s chair, Cynthia Bauerly, after several heated exchanges between the commissioners failed to produce consensus.

To be sure, the group’s request [PDF] was unusual — and so forthright about its aims that more than one commissioner praised the group for its candor: American Crossroads stated its intent to create an ad that “would be fully coordinated” with candidates, that “would be thematically similar” to the candidates’ own re-election campaign materials, and would feature candidates in the actual ad.

The purpose, the group stated, would be “to improve the public’s perception of the featured Member of Congress in advance of the 2012 campaign season.”

The three Democratic commissioners voted to deny the request, arguing that, even setting aside the FEC’s coordination rules, such an ad is essentially a donation of something of value to the candidate for the purpose of influencing an election, or an in-kind contribution. The Republican commissioners disagreed, arguing that their Democratic counterparts were judging the ad by a broader standard than the FEC’s own coordination rules, which are exceedingly narrow.

As we reported last month, the FEC, made up of three Democratics and three Republicans, has frequently deadlocked on key issues like the rules governing these increasingly influential Super PACs. And when the commission can't make up its mind, groups have the choice of taking the FEC’s deadlock as a de facto green light and plowing ahead anyway.

In other words, American Crossroads could look at this 3-3 split and still produce the ad it wants to — taking a calculated risk that if its actions are challenged down the road and the FEC's makeup doesn't change, the commissioners would surely deadlock again in the enforcement process.

Whether American Crossroads will indeed choose that path remains to be seen. After all, Democratic Sen. Ben Nelson of Nebraska appeared in supposedly independent, uncoordinated ads earlier this year, arguing that they were “issue” ads. Republicans have complained, but the FEC has yet to sanction Nelson or the funders of the ad.

In a statement, American Crossroads spokesman Jonathan Collegio said the group is "reviewing the FEC statements and evaluating options," but that the more important question is how the vote will affect Nelson, who "has already taken action identical to what we asked about." 

Stephanie Palmer

Dec. 2, 2011, 2:17 p.m.

Why do the FEC commissioners determine right or wrong by party affiliation? Something is wrong with this picture. It sounds pretty clear to me that this so-called Super Pac is trying to be a regular Pac. So I have to wonder why Karl Rove decided to call it a Super Pac.  Why doesn’t he go to the Supreme Court with it? This guy is totally un-American. He wants to buy the government - I don’t know why he would want to do that, but given the state of the economy, this country isn’t going to be an entity much longer. He and his ilk can be kings of nothing.

Thank you for this article to make us more aware that Carl Rove remains the man behind the curtain of the Wizard of Ozz calling themselves “American Crossroads”—the yellow brick road to climate catastrophy via XL Pipeline, fracking gas shale by injecting unnamed chemicals in unregulated amount into the soil while belching so many tons of NOX gases into the state of Wyoming to cause airpollution the likes of LA.

..and breaking up families to work oil workers for weeks at a time away from their families while living in “man camps” and avoiding offering good paying jobs to locals while the oil workers mostly from Texas and Oklahoma working in Pa on their time off are drinking themselves into oblivion and causing car crashes and breaking into homes to find cash for methamphetamine to keep themselves awake during the next sometimes 24 hour shifts—see the 36 hour shifts that workers endured at the Clearfield Pa well blowout in 2010 as reported by the DEP investigation into the accident.

If possible, please provide details on the first time a petitioning group was given the choice to presume a deadlock among commissioners was a “green light”.  Pathetic and comical are two descripters that may be appropriate.

Did it ever occur to anyone to have an odd number of FEC comminisioners?  This works about as well as the Congressional supercommittee of gutless schmucks.

I forgot to mention Rove appears to be morphing into a Macy’s Christmas parade float.

I doubt our nation has ever been subjected to a less worthy or legitimate political class than it has at this point in time. This attempt by American Crossroads to subvert campaign finance laws is illustrative of the vulgar contempt for the legal foundations of our nation that has become endemic. It is small consolation that history will consign their names with derisive connotations.

I have this thing:  I believe in democracy, and I believe that the American people are America.

So people like Rove, who wish to drown out the voice of the many by overwhelming it with the money of the few?

Flat-out un-American, IMHO.

{SP: He wants to buy the government }

Unfortunately, that is what any PAC does. And one must ask, “Why is it that junk TV ads have so much influence over the body politic”.

That is the real question. Why is the American public so gullible as to believe the crap these ads convey.

Until we (as a people) get a lot smarter, we will remain prey to the sort of publicity that is often defamatory or bent on character assassination. I.e., like selling soap-powder, which candidate “washes whiter than white”? What childish nonsense.

When, in fact, we should be concentrating on the fundamentals. That is, a candidate’s platform policies.

Until we wake up to election fundamentals, the PACs will focus on electoral manipulation of sentiment - and always in the most base way.

Lafayette - your comment is right on target. But, how in the world do we do anything about it? I see many people who have just given up on the process because they are so disgusted and feel their vote doesn’t matter and a lot of people who are stuck in their ideology and will vote the same way regardless of advertising. There are quite a few who really do try to pay attention, but don’t know who or what to believe… and then there are the totally gullible. That’s not counting those who simply can’t be bothered with their civic duty.

So, incumbents are too often reelected due to name recognition and nothing else and advertising works - which is what perpetuates the whole campaign contribution/corruption cycle.

How do we reach the gullible and those who just don’t know what to believe? How do we get people more ‘street smart’ about the political ads? How do we get people to even pay attention, and care? I don’t know… but when the celebrity news dominates, I’m afraid we have a bunch of dead-weight citizens when it comes to preserving our democratic-republic system.

Darrell Stouffer

Dec. 3, 2011, 10:25 a.m.

Seriously? A committee is formed with six members, three from each side. If they deadlock on a decision they move ahead as though they have a green light? They will both always disagree so nothing is ever resolved.

The whole subject is land mined with political interest groups with lots of cash.

Ignoring for a moment that campaign finance rules are screwed up big time, when I read many of the comments the biases stick out like a sore thumb.  The article clearly states that democrat, Ben Nelson, who is a current sitting U.S. senator (Karl Rove is not)  WITHOUT ASKING, ran fully coordinated adds.  Where is the condemnation of democrat Nelson for this ACTUAL VIOLATION of regulations.  Senator Nelson should be held to the highest standard by all of us? Could American Crossroads essentially be asking the FEC to level the playing field since the FEC can’t undo the violation and harm already caused by democrat Senator Ben Nelson?  I am not defending Rove but I can certainly understand why he would seek equal treatment.  What I can’t understand is why many of the commentors have chosen to ignore the facts brought out in the article and hypocritically give democrat Ben Nelson a free pass for breaking the law.

@Buddy - while there are comments referring to Crossroads/Rove, there are also (more) comments that are generic - not taking any side. But, now that you mention it, seems the Republicans complained about what Nelson did (which was probably in alignment with their own issues anyway, since he’s a DINO…) but no action was taken. Maybe it was another deadlock? Anyway, they now seek permission to do the same thing… The bigger issue is nonpartisan - the whole superpac business and Americans’ being too swayed by advertising and noncritical thinking, uninformed or misinformed, and party loyalties/ideological voting no matter what is destroying our system. If we do not get over our divide (left vs right) we will soon regret it, I think.

@Buddy Green:  Given that the right - the Republicans and their “conservative” property on the Supreme Court - created this mess, don’t you think it rather unsporting to insist that only the right be permitted to take advantage of it?

@LA_CC:  DINO approaches an understatement…I wouldn’t be surprised to find that the GOP habitually picks up both Nelson’s and Baucus’ lunch tabs.

Part of the problem with the FEC as well as many other Federal appointees is that the GOP has been blocking all appointments from the administration.

First, as others have mentioned, getting no answer on a request for an exception means “no,” not “we don’t know.”  Deadlock preserves the status quo in every reality I can think of, certainly.

Second, “improve the public’s perception of the featured Member of Congress in advance of the 2012 campaign season”?  Have they considered asking the candidate to vote for things that will help his constituents instead?  Such a campaign might prove cheaper than explicitly defrauding the electorate, which is what this amounts to.

Does anybody know the target?  I’d donate to his opposition on principal.

(Ew.  Ugly typo.  My apologies…)

rove is nothing but a piece of human trash!