The FEC probably did SpeechNow.Org a couple of favors with the draft opinion it released.  On the merits, it dealt the conservative hand SpeechNow surely expected:  it dismissed the argument that SpeechNow can avoid "political committee" status, and it ruled that, as even as an "independent" committee, SpeechNow cannot escape limits on the individual contributions it receives.  Now the FEC is out of the way, and SpeechNow can petition the courts for assistance, having checked that box.  The favors done here lay in issuing the opinion at all, while the agency hibernates through this period of scarcity (of Commissioners), and in defending its regulatory position with little zest or persuasiveness.

     One might be of two minds about the Commission’s will to function in its current enfeebled state.  It is giving guidance, after a fashion, allowing the General Counsel to put out drafts.  But what exactly is the meaning of this guidance if it is the work of staff, a recommendation and no more, and the agency cannot approve it?  No one can rely on the advice, in the sense that it provides cover for any action taken or foresworn.  It is not advice:  it is an expression of opinion, an indication of the Office of General Counsel Office’s thinking.  It is presented as a draft and, because there are not four Commissioners to elevate it further, a draft is what it remains.  A fair question is whether a government agency should be shaping conduct with drafts and glimpses and indications. 

     It is an election year, however, and the FEC is doing the best it can, for which it cannot entirely be faulted. SpeechNow is better off for having at least tried to obtain  guidance, of whatever kind is not available, before heading off to court.

     Then there is draft itself, which is a mechanical run-through of all the reasons why SpeechNow.Org is no different from any other organization collecting and spending money "for the purpose of influencing" a federal election.  This is not a draft that tries too hard to come to terms with the hard questions that SpeechNow is raising—questions that even the reform-minded concede to be challenging ones, testing the very limits of regulation under current constitutional standards. 

SpeechNow is pressing the point that if its speech is independent, funded only by individuals without the help or involvement of candidates and parties, the "corruption" rationale holding up regulation can have no force.  The FEC skips over the issue, giving only a straight and lifeless bureaucratic reading of its own rules, when the question is whether the rules—particularly the enforcement of contribution limits—apply in this instance.

     In court, the FEC will have to enlarge the argument, accepting the constitutional terms of engagement.  At the agency level, it did not feel it needed to do so, and it just gave the answer, more or less robotically, that one would have expected.  In effect, the FEC, responding to SpeechNow’s fully argued request, gave something like its name, rank and serial number.  It delivered an account of the best argument under its rules, an argument that would only be good enough if constitutional authority need not be considered.

     Having this draft can’t but help SpeechNow at the next stage in this fight.  Apart from having dutifully checked with the agency, the organization can show, further, that the agency has little to say of any interest on the subject but confines itself to defending its statutory turf.  The draft gives no sense of the stakes of this confrontation:  all of the passion, all of the intellectual energy, is found on the other side, where SpeechNow is found. 

     Later the agency can make up a little of this ground in its briefs. Yet "first impressions," we are always reminded, are very powerful, and as this issue moves to court, SpeechNow can claim the advantage.

Bob Bauer