American Crossroads is backed by Karl Rove. FEC splits on 'coordination'

The Federal Election Commission deadlocked in a 3-3 vote today over whether the Karl Rove-backed super PAC American Crossroads can feature members of Congress and otherwise “fully coordinate” with candidates without being considered “coordinated” communications under federal election law.

American Crossroads had asked the panel to clarify whether outside spending groups could produce advertisements that feature incumbent members of Congress without being subject to FEC restrictions on coordinated advertisements. The group made its request after state Democratic Party advertisements featuring Sen. Ben Nelson (D-Neb.) raised questions about coordination rules.


The three Democrats on the commission voted in favor of a draft opinion finding that advertisements intended to improve the public’s perception of a congressional candidate and that features and is otherwise “fully coordinated” with the candidate would constitute an in-kind contribution subject to limitations under FEC regulation.

American Crossroads made it clear in its request that the advertisements it sought to make would be “fully coordinated” with incumbent members of Congress seeking re-election and would aim to improve the public’s perception of those members in advance of the 2012 election.

But Thomas Josefiak, a former FEC commissioner representing Crossroads, said the coordination would only be in the “dictionary sense” of the word.

“In the dictionary sense, you’re getting a member involved in your ad, period,” Josefiak said. “In the dictionary sense, that’s coordinated, there’s no way to get around that. But what we’re referring to is it coordinated in the statutory sense, in the regulatory sense that would actually trigger some sort of a requirement, an independent requirement or a contribution requirement.”

Democratic Commissioner Ellen Weintraub pointed to Josefiak’s comments as proof that the request runs afoul of coordination limits.

“For me, there’s no way to get around the conclusion, therefore that this is a fully coordinated communication with candidates who are running for reelection and it is for the purpose of enhancing their electoral prospects,” she said.

Republican Commissioner Donald McGahn said the draft championed by the Democrats went too far and made some “rather outrageous claims” characterizing the FEC rules about what constitutes coordination with candidates.

“There’s rules and we can’t just disregard them because a requestor says yes, objectively, we hope this influences the election,” he said. He and the other three Republican commissioners voted against the draft opinion, leaving independent political groups with little clarity about the legal requirements surrounding featuring candidates in advertisements.

Campaign finance reform groups pointed to the deadlocked vote as a sign that American Crossroads will face legal scrutiny if it attempts to run the advertisements it proposed.

“It means that there’s certainly not a majority of commissioners who believe that American Crossroads’ proposed course of action is legal; there’s no majority,” said Campaign Legal Center FEC Program Director Paul Ryan. “So the legal impact is that they don’t get the shield that they sought here today.”

American Crossroads, meanwhile, called on the left to hold Democratic advertisements to the same standards by challenging the advertisements featuring Ben Nelson.

“The FEC today failed to approve actions similar to those taken by Senator Nelson and the Nebraska Democratic Party,” said American Crossroads spokesman Jonathan Collegio in a statement, adding that campaign reformers should now “take action against Senator Nelson and the Nebraska Democratic Party.”

The commission did manage to find some common ground Thursday, voting unanimously to adopt an opinion stating that congressional leadership PACs can’t receive unlimited contributions from individuals, corporations and labor organizations to finance independent expenditures.

The Constitutional Conservatives Fund PAC – a leadership PAC affiliated with Utah Republican Sen. Mike Lee – argued that the committee should be able to receive unlimited cash to finance ads that don’t directly benefit the candidate, but commissioners agreed that all funds going to leadership PACs and other congressional committees are subject to contribution limits.

McGahn said the law clearly prohibits unlimited contributions from going through political candidates’ spending committees, even if that money would ultimately be used for other purposes.

“What I don’t understand is why you’d have to spend that money through Mike Lee’s hands,” he said. “Once you run it through the senator’s hands, you’re limited to 5,000 because you’re essentially giving to an incumbent politician. So it’s not as if everyone’s rights are being trampled; it’s only when you choose to put it through a particular politician’s hands that you have this issue.”