“We have this very unusual request, where the requester has come in and said, ‘Yes, we are going to coordinate, and we are going to do it for the purpose of influencing an election,’” she said.
But Commissioner Donald McGahn, a Republican, strongly disagreed. The issue is not how many public comments oppose the request but whether the FEC’s coordination regulations apply, he argued. The FEC has struggled over several years to write coordination regulations that would stand up in court. Lower courts have repeatedly thrown out the regulations as too broad.
“I really just don’t see how an agency can just disregard its own regulations,” McGahn said, at one point tearing up a stack of papers in front of him to illustrate his point. “The tool is the law. You can’t just rip it out of the book.”
But the commission is deadlocked, 3-3, meaning, essentially, that American Crossroads proceeds at its own risk. A commission majority is required for the FEC to take action. Were American Crossroads to produce the ads described in its request, it would lack the shield of the FEC’s approval and could face a complaint or enforcement action.
Commission Chairman Cynthia Bauerly’s concluding remarks summed up the uncertain terrain politically active groups face going forward: “The commission is unable to reach a conclusion on this request.”
Lois Lerner, director of exempt organizations for the IRS, arrives for a House Oversight and Government Reform Committee hearing on the investigation of the IRS' targeting of political groups. Lerner invoked her Fifth Amendment right to not testify and caused a protest from some committee members when she offered an opening statement and engaged in dialogue with members before invoking the right.
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