The FEC answers a nagging question - sort of

Joe Miller of Alaska won the GOP Senate nomination with help from an outside group's spending.
Joe Miller of Alaska won the GOP Senate nomination with help from an outside group's spending. (Michael Dinneen)
By Dan Eggen
Washington Post Staff Writer
Thursday, September 2, 2010

After years of wrangling, the Federal Election Commission has issued new rules aimed at clearing up the question: When is it illegal for an interest group to coordinate with a political candidate?

But it's not clear if anyone likes the FEC's answer.

By a vote of 5 to 1, the commission decided last week that any ads or other messages that contain the "functional equivalent of express advocacy" for or against a congressional candidate should be considered subject to FEC campaign finance restrictions.

Some campaign finance reformers, however, say the rules don't go far enough and leave loopholes allowing broad coordination between candidates and outside groups that support them. The rules also appear to do little to clarify what kinds of cases might run afoul of the limits, almost ensuring further litigation.

The issue is important because deciding whether an interest group is acting in coordination with a party or a candidate is crucial in determining whether it must abide by contribution limits and other oversight from the FEC.

The issue is even more relevant in the wake of January's Supreme Court ruling in Citizens United v. FEC, which found that corporations can spend unlimited amounts of money in an election - as long as they are not coordinating with a candidate.

Consider one high-profile example in the news this week: Joe Miller, the political novice who beat Sen. Lisa Murkowski in Alaska's GOP primary, benefited from about $600,000 in independent expenditures by the California-based Tea Party Express. To spend that much, the group could not coordinate directly with Miller's campaign.

The FEC's new rules do not take effect until December, so they will have no immediate impact on the 2010 election cycle. Outside political groups are expected to play a central role in the November midterms and are already spending millions each week.

The debate over coordination stems from the 2002 McCain-Feingold campaign finance law, which repealed the FEC's rules at the time and ordered the commission to write new ones.

The agency's attempts to define coordination have repeatedly been overturned by the courts; the rules issued last week were its latest attempt to get the regulations right.

The final vote amounted to a compromise after the six-member commission deadlocked along partisan lines, as it has frequently in recent years. One Democrat, Steven T. Walther, issued a separate opinion in dissent.

Brett Kappel, a campaign finance lawyer at Arent Fox, notes that coordination cases are notoriously difficult to decide and that the FEC has prosecuted few over the years. He also said many candidates of both parties allege unlawful coordination as a way to harass their opponents and grab a few headlines before an election.

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