WASHINGTON -- In a Thursday session featuring a lengthy and testy exchange between two commissioners and the repeated invocation of comedian Stephen Colbert, the Federal Election Commission deadlocked on a 3-3 vote on yet another controversial campaign finance issue raising the Supreme Court's Citizens United decision.
American Crossroads, the multimillion-dollar conservative super PAC linked to Karl Rove, had sought to run a variety of ads featuring members of Congress. The question before the FEC was whether super PAC ads featuring a member of Congress would violate the coordination ban, which blocks certain interactions between independent groups like American Crossroads and candidate committees.
The language of the coordination ban is defined in strictly legal terms, which differs from the common or dictionary understanding of certain words. Highlighting this difference was a sentence in the Crossroads request stating that, although the ads would be "fully coordinated" with candidates, they should not qualify as "coordinated communications."
This made-for-late-night-TV statement became a part of a running gag on "The Colbert Report," the Comedy Central show helmed by the comedian. And, ultimately, the statement and Colbert's lampooning of it defined the divide on the FEC that led to Thursday's deadlock.
At Thursday's hearing, Donald McGahn, a conservative voice on the commission, asked Crossroads lawyer Thomas Josefiak to explain the meaning of "fully coordinated," since "the Colbert Nation has been released."
"Certainly they're coordinated, but we're using that in the lay sense," Josefiak stated. "The question is, is it coordinated from a regulatory perspective?"
Coordination rules at the FEC set forth a three-prong test to determine if an expenditure is coordinated. Those prongs are payment, content, and conduct. As Crossroads had already conceded the ads met the payment and content standards in its request, the debate focused on the conduct standard.
McGahn tried to keep the argument centered on the three-prong test, which he believed some of the proposed Crossroads ads did not meet. But the Democratic commissioners sought to deny the PAC's request not under the FEC rules, but under the law's definition of a contribution.
"This is a question of whether we're looking at the forest or we're looking at the trees," Commissioner Ellen Weintraub said. "Part of the forest is that there's a statute, and the regulations can't reverse the statute. ... There's no way to get around the conclusion that this is a fully coordinated effort with candidates. ... It falls squarely under the statute."
Weintraub also thanked Colbert for "shining a light on this little corner of government" as she brought up the hundreds of comments the commission had received on the Crossroads request from viewers of his show.
"Obviously, this request struck a chord with a lot of people out there," Weintraub said, adding, "Most of them were not very complimentary of what the requester is doing."
McGahn dismissed Weintraub's reference to comments that did not "analyze the law," and there ensued a long and, at times, cranky exchange between the two over looking to the regulations or the statute to address the Crossroads request.
"I really just don't understand how an agency can disregard its own reg? Is there a case where an agency can disregard its reg?" an apoplectic McGahn asked. "I just don't understand how with a straight face you can just do that!"
"Obviously, I don't think that I am doing that," Weintraub retorted. "The requester doesn't think it's a slam dunk!"
McGahn eventually tore a sheet of paper out of a notebook and angrily crumpled it as he again questioned the ability of the commission to, as he put it, go around the regulations. "Are we really empowered to do that?" he asked. "Just ignore the reg?"
When the debate calmed down, the three Democratic commissioners voted to adopt a draft opinion that would have denied Crossroads' request outright and the three Republican commissioners voted not to adopt it. The result: no guidance from the commission on the Crossroads request.
In the face of no FEC guidance, Democracy 21 President Fred Wertheimer said in a statement that Crossroads, or any other group, should not go forward and make these "fully coordinated" ads. "This means that if American Crossroads proceeds to run any ad in coordination with a candidate, the Super PAC has no license from the Commission to do so and any such ad will be subject to examination and challenge as illegal," said Wertheimer.
Another campaign finance reform advocate used the deadlock to call for the abolition of the FEC in The Atlantic and a public statement. "The FEC proved again today that it is utterly incapable of enforcing the nation's campaign finance laws," said Adam Skaggs of the Brennan Center for Justice in his statement. "Karl Rove asked the FEC to declare that advertisements he admits are 'fully coordinated' with candidates nonetheless don't count as 'coordinated communications' -- and the FEC's failure to decisively reject this absurd request proves it cannot enforce the campaign finance laws its commissioners are sworn to uphold. If the FEC cannot reach the correct result in such a black and white case, it must be replaced."
The Crossroads request went to the FEC after Nebraska Republicans complained about ads run by the Nebraska Democratic Party, considered an outside group, that featured Sen. Ben Nelson (D-Neb.). Nelson appeared in ads that did not expressly advocate for his reelection in 2012, but featured him addressing issues that he tackled as a senator and previously as a governor.
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