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FEC Leaves Unclear Path for Super PACs

Bill Clark/CQ Roll Call File Photo

Struggling to define the role of political action committees in elections, the Federal Election Commission told a Senator today that he may not raise unrestricted money for his leadership PAC but stalemated over whether a super PAC could work closely with lawmakers in producing ads.

In a spirited hearing lasting two and a half hours, the six-member commission wrestled, sometimes contentiously, with how much freedom political players now enjoy in the wake of last year’s landmark Citizens United v. FEC ruling. That case upended long-standing restrictions on corporate and union political expenditures.

Sen. Mike Lee (R-Utah) and the conservative super PAC American Crossroads asked the FEC just how much freedom they enjoy under the post-Citizens United regime.

Lee wanted to know whether his leadership PAC, the Constitutional Conservatives Fund, could set up a separate account to raise unregulated contributions so long as that account made only independent expenditures to support other candidates. Lee’s lawyer argued the normal $5,000 PAC contribution limit should not apply because the spending would be independent.

But the commission unanimously rejected Lee’s request. Commissioners pointed out that Lee’s plan flies directly in the face of the McCain-Feingold soft money ban, upheld by the Supreme Court, which imposes strict contribution limits on federal officials and on committees they establish or control, including leadership PACs.

But the American Crossroads request underscored the sharp divisions on the commission, which is split evenly between Democrats and Republicans. The conservative super PAC, set up with the help of GOP operative Karl Rove and positioned to outspend many of its rivals in 2012, had asked the FEC whether it could produce issue-oriented ads with direct input from elected officials.

The query was sparked in part by some ads that the Nebraska Democratic State Central Committee has produced in cooperation with Sen. Ben Nelson (D-Neb.). At issue is whether inviting a lawmaker in to help tape ads, even issue ads, constitutes coordination with a candidate. The Citizens United ruling freed up outside groups to spend unrestricted money only in cases where they act independently and not in coordination with candidates or parties.

“When you’re talking about issues, there’s no reason you can’t talk about issues with a Member of Congress,” said American Crossroads attorney Thomas Josefiak, a former FEC commissioner. But Josefiak acknowledged that the request raised semantic questions, given the group’s open plan to work with lawmakers.

“In the dictionary sense, you’re getting a Member involved in your ad, period. In the dictionary sense, that’s coordinated. There’s no way to get around that,” he acknowledged.

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