First the Supreme Court affirmed that the First Amendment allowed corporations to engage in unlimited independent expenditures on behalf of candidates . Two months later, the DC Circuit held (and the FEC did not appeal) that if individual corporations could do that, so could groups of corporations and individuals working together . Again, though, these were for independent expenditures only—ads not coordinated with a candidate or her campaign.

It's time for the next shoe to drop. As today's New York Times reports, a recent Ben Nelson ad (paid for by the Nebraska Democratic Party with DSCC help) heralds the next wave of corporate dollars flowing into federal elections through direct coordination with candidates:



The ads are innocuous enough on their face: Senator Ben Nelson, a Nebraska Democrat up for re-election next year, is featured on television and radio commercials discussing Social Security, the national debt, war veterans and other hot-button issues. What is remarkable, campaign finance lawyers and political operatives say, is that the ads were produced and paid for by Democratic Party officials in Nebraska and Washington — with the senator’s close involvement as their star. Federal campaign rules restrict politicians from “coordinating” their advertisements with outside groups except under certain circumstances. Politicians — worried about tripping over the legal restrictions — have usually shied away from working directly with outside groups on ads. Instead, “issue” ads paid for by outside groups will typically hit on broad themes without focusing so squarely on a single lawmaker.... American Crossroads — the powerful and well-financed Republican group formed with the help of the former White House aide Karl Rove — filed a request on Wednesday with the Federal Election Commission asking for a formal ruling on whether it could “adopt the tactics” of Mr. Nelson in coordinating footage of politicians up for re-election. American Crossroads said in its request that it “may wish to produce and distribute similar television and radio advertisements” featuring incumbents in the 2012 campaigns. The group said that because it was “especially sensitive” about rules banning improper coordination with a candidate, it wanted to check with the F.E.C. first to make sure such ads would be legal.

Under the new FEC regulation, ... a member of Congress can sit down with a corporate official, write a series of ads that promote his candidacy or attack his opponent, decide where and when the candidate wants to run the ads and then simply have the corporation write a check to the cover the costs of producing and running the ads. Despite the Member's complete control of the ad campaign promoting the Member and attacking his or her opponent, this would not constitute coordination by the corporation with the Member as long as the ads are run more than 90 days before an election, and do not contain "express advocacy" or the "functional equivalent" of express advocacy. ... It is a fiction and fantasy to take the position, as the FEC does, that a corporation paying for ads that are written, produced and placed by a Member of Congress, and that promote the Member or attack the Member's opponent, is not engaged in illegal coordinated spending under campaign finance laws, where such ads are run in the middle of an election season but just over 90 days before the general election.

The FEC is unlikely to approve Crossroads’ request outright, but there’s a good chance the commission’s Democratic and Republican members would split 3 to 3 on the matter. Many interest groups would take that as a green light, because it takes four members of the commission to open an investigation or impose fines. ...By law, [SuperPACs] are prohibited from coordinating on elections with federal candidates, officeholders and even party officials. The Supreme Court has found these rules are sufficient to isolate politicians from the corrupting influence of large donations and spending. That wall between politicians and big money took a hit when the FEC found that candidates could help raise money for independent groups such as super PACs as long as they asked donors only for checks within the $5,000 limit allowed for regular political action committees. Republican presidential candidate Mitt Romney and Democratic lawmakers have already begun soliciting contributions for the independent groups supporting them. If candidates like them are able to help create ads as well, it would take independent groups one step closer to an official campaign operation.

The issue is the definition of "coordination" under the law—or, rather, which ads are subject to the coordination rules. So long as the ads don't contain "express advocacy"—explicit "vote for"/"vote against" language or otherwise "susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate" —then during this window it's not within the regulations as to the coordination ban. As Fred Wertheimer explained in 2010 when the FEC's new coordination rules were announced So long as there are no "magic words" in the ad, then it's an "issue ad." Even if it includes (and is coordinated with) a candidate for election that year. The Washington Post's T.W. Farnam explains what's next