That was enough for FEC Commissioner Ellen Weintraub, a Democrat. Noting that the commission had received hundreds of public comments — thanks in part to comedian Stephen Colbert’s ongoing satire of the campaign finance laws — Weintraub said that by super PAC organizers’ own admission, American Crossroads plans to engage lawmakers in producing ads that will present the elected official in a favorable light. That turns the ads into an in-kind campaign expenditure, she said, subject to contribution limits.
“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.”