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Even Commissioners Unsure What Ads New FEC Rules Cover « The Washington Independent

The FEC met yesterday to approve a much-anticipated rule on “coordinated communications” that will have a big impact on guiding how independent political groups spend their money in upcoming elections. The rule determines what type of content would trigger restrictions on donations funding a political ad.

FEC commissioners were wrangling over a final agreement well past their self-imposed June 30 deadline, reports BNA Money and Politics Report’s Kenneth Doyle (subscription required). The draft of the final regulations was submitted late and therefore not released to the public before the commissioners met at 2 pm yesterday.

In the end, the commission voted on a definition of “coordination communications” that borrows heavily from the Supreme Court’s Citizens United decision. According to the new rule, messages that contain the “functional equivalent of express advocacy” for or against candidates should be considered coordinated with a campaign and therefore subject to FEC campaign contribution restrictions. Doyle notes that the definition represents a retreat from the previous standard:

The compromise rule was adopted on a 5-1 vote following rejection of a stricter provision, which would have covered all messages that “promote, support, attack or oppose” candidates. That proposal—known in FEC shorthand as the PASO standard—was rejected on a party-line vote, with the three Democratic FEC commissioners supporting it and the three FEC Republicans opposed.

Despite all the wrangling, it’s still not clear, practically speaking, what kinds of ads will fall under the new definition. Republican Commissioner Caroline C. Hunter noted that the FEC tried to come up with new examples of messages that would be regulated but couldn’t agree. Just as the new definition — “functional equivalent of express advocacy” — was lifted from Supreme Court Chief Justice John Roberts’ decision, the FEC guidance on the new rule only references ads involved in recent Supreme Court cases like Citizens United and Wisconsin Right to Life Inc. vs. FEC.

In other words, it’s the same old story from the FEC. Bitterly divided along partisan lines, it can only agree on the definitions and examples provided by the most recent Supreme Court decisions on the matter. Eventually, it will have to rule on challenges brought forth against groups believed to be in violation of the “coordinated communications” rule, but based on their actions so far, it seems likely that the three Republican commissioners will agree to hear only those challenges that hew to narrowest of standards.

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