Election panel enacts policy by not acting

WASHINGTON — The three Republican and three Democratic appointees of the Federal Election Commission had reached yet another deadlock: They would issue no advisory opinion on whether the Conservative Action Fund could accept contributions of bitcoin, the online currency created to be untraceable.

But a ruling of sorts emerged nonetheless in the hearing, held late last year, when one of the Republican commissioners, Lee E. Goodman, suggested that the group could essentially do as it pleased. The fund “has a clear statutory right to give and receive in-kind contributions regardless of what we say here today,” Goodman said.

The case was just one of the more than 200 times in the past six years that the commission has split votes, reflecting a deep ideological divide over how aggressively to regulate money in politics that mirrors the partisan gridlock in Congress.

But instead of paralyzing the commission, the 3-3 votes have created a rapidly expanding universe of unofficial law, where Republican commissioners have loosened restrictions on candidates and outside groups simply by signaling what standards they are willing to enforce.

Campaign lawyers of both parties say the deadlocks have profoundly, if informally, affected the rules governing campaigns, particularly on questions involving whether political nonprofit groups must disclose their finances and the threshold for starting an investigation.

The splits are consistent enough in spelling out the likely direction of enforcement, they say, that they now advise clients that a 3-3 split comes close to official commission policy.

“If you’ve got a client who is not as risk-averse, then you can sit down with them and say, ‘Here’s the situation, you have three commissioners who say this is lawful, and that is something you can rely on between now and November for your campaign strategy,’” said Michael E. Toner, a Republican election lawyer and former commissioner.

Some election lawyers have even turned the deadlocks into a kind of marketing spiel. As Anthony Herman, a lawyer at Covington & Burling, put it in an article on the firm’s website: “The F.E.C.: Where a ‘Tie’ Can Be (Almost) a ‘Win.’”

In an interview, Goodman, the commission chairman, described the guiding principle as one of deference to First Amendment political speech. In case of a deadlock, he said, the “tie goes to the speaker.”

That philosophy has not only changed the way older regulations are applied, but has also helped create de facto rules on emerging issues: whether candidates can set up fake websites for opponents to raise money for themselves, for example, and what disclosures are required on text-message political ads.