12/02/2011 01:28 pm ET Updated Feb 01, 2012

FEC Deadlocks on Advisory Opinion Request from American Crossroads, Provides No Support for Crossroads to Run 'Fully Coordinated' Ads

In a 3 to 3 decision Thursday, the FEC refused to give approval to the effort by American Crossroads to run ads "fully coordinated" with candidates and have the ads treated as ads that were not coordinated with the candidates under campaign finance laws.

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.

The three Democratic Commissioners on the FEC voted today for an advisory opinion that correctly found that the ads described in the Advisory Opinion Request submitted by American Crossroads would be impermissible in-kind contributions to the candidates.

The three Republican Commissioners voted against this proposed advisory opinion, leaving a 3 to 3 deadlock vote. The deadlock means, however, that American Crossroads does not have FEC approval for its proposed activities.

The Supreme Court in establishing in Buckley V. Valeo that "independent expenditures" could not be constitutionally limited made clear it was describing expenditures "made totally independently of the candidate and his campaign."

The current FEC coordination regulations are light years away from this Supreme Court position.

The FEC has carved out a ludicrous window in its existing coordination regulation that purports to allow ads run by outsider spenders to be coordinated with candidates if the ads do not contain express advocacy or the functional equivalent of express advocacy and are run more than 90 days before a primary or 90 days before a general election.

Democracy 21 has twice in the past been involved in representing members of Congress who successfully challenged previous FEC coordination regulations as contrary to law. These coordination regulations were struck down by federal district court decisions, which were upheld by D.C. Court of Appeals decisions.

The current FEC coordination regulations are similarly contrary to law and do not comply with these court decisions. We are exploring bringing a court challenge soon to have the current improper FEC coordination regulation struck down.

In a second decision Thursday, the FEC reached a unanimous correct decision.

The Leadership PAC of Senator Mike Lee (R-UT) had asked the FEC whether it could raise unlimited contributions from corporations, labor unions and individuals to use for "independent expenditures" supporting or opposing other federal candidates.

In a 6 to 0 decision, the Commission correctly found that Senator Lee's Leadership PAC was prohibited from doing this.

This was an open and shut case and only one answer was possible under existing campaign finance laws: the Leadership PAC of a member of Congress is flatly prohibited under existing campaign finance laws from raising unlimited contributions.