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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.

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." 

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