FEC hesitating after EMILY's List decision

The Federal Election Commission (FEC) is deadlocked over whether to allow a political consulting group to coordinate efforts of separate independent expenditure campaigns.

The FEC voted to allow Black Rock Group to act as a vendor for wealthy individuals who want to run political advertisements, but it declined to take a position on whether the group could coordinate expenditures.

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The problem for the FEC is a court ruling that stems from a lawsuit brought by EMILY's List, the pro-abortion-rights Democratic organization, that threatens to strike down FEC regulations of political spending by outside organizations.

A three-judge panel of the U.S. Court of Federal Appeals, citing the First Amendment, struck down FEC rules limiting how groups like EMILY’s List can spend money.

The FEC may appeal the decision to either an en banc panel of the D.C. Circuit Court or directly to the Supreme Court, but commissioners have yet to take up that question publicly.

The decision has left the FEC uncertain over how to proceed with some questions of campaign finance law.

At issue in the Black Rock decision was whether Black Rock could be contracted to poll, create advertising and conduct other political activities for single-member limited liability companies, which would be managed and funded by a single wealthy individual.

By not making a decision, the FEC sent a mixed message to proponents of campaign finance reform and those who say campaign spending equals free speech.

The decision, said Paul RyanPaul RyanDems find voice with disruption Democrats plan 'day of action' to keep spotlight on guns Dem protest ignites debate about control of House cameras MORE of the Campaign Legal Center, was “as good as [reform groups] could hope for,” though he noted that the deadlock means Black Rock is unlikely to be fined if it does facilitate communications. Three commissioners voted to allow facilitation, while two did not (the sixth commissioner recused herself from the case).

Any enforcement actions by the FEC require four votes, and with three commissioners staking out the position that facilitation would be legal under campaign finance law, Ryan said the hopes of taking any action are remote.

“The writing on the wall is that there presently aren't four votes to find a violation, and there aren't four votes to allow it. It's kind of a non-answer answer,” Ryan said.

William McGinley, Black Rock's attorney and an election lawyer at Patton Boggs, said the FEC's opinion is “another indication that independent spending could be a major factor” in the 2010 elections.

The EMILY's List case that delayed part of the FEC's decision, McGinley said, has the potential to go much further in allowing new money to be spent on political campaigns.

“It could be a watershed case. It could really open up independent spending for next year,” he said. “What the court was basically saying is that the FEC does have some jurisdictional boundaries under the First Amendment, and it needs to respect those boundaries."