The two Commissioners left on the FEC met yesterday and became Chair and Vice Chair, respectively, heading up an agency of which they are the only members.  Then they considered the SpeechNow request to be excused, on constitutional grounds, from certain provisions of the campaign finance laws, and they split, 1-1, on the question.  Take your pick:  good government or a good show?  The Commissioners’ opinions do not count, not as a vote of the majority of a full six-member body would, but there were points to be awarded for at least making an appearance.

     And David Mason, the Chair, issued a 4-page statement of his position, in disagreement with the staff draft on one part.  Mason agrees that SpeechNow should register as a political committee once it has raised or spent funds beyond the statutory threshold.  He does not agree that limits may be applied to the contributions the committee receives from individuals.  His analysis is, simply and straightforwardly, that if the organization does not contribute to candidates or coordinate its activities with them, then its fully independent speech poses no threat of corruption that would justify contribution limits. 

     Mason further argues—argues first, in fact—that the Commission cannot avoid taking a position on the constitutional question.  On this point his position is aggressive and somewhat uncertain in its thrust.  Mason believes that the Commission is independently empowered to “grant [an]…exemption” from the limits for SpeechNow on constitutional grounds.  In the immediately following paragraph, he characterizes the action the Commission is being asked for, and that he would give, as “advice,” and he distinguishes the rendering of advice from the invalidation of a statute, which is “an action beyond the jurisdiction of the Commission.”  

     But of course, an Advisory Opinion issued by the FEC is one on which anyone may rely if their circumstances are materially indistinguishable from SpeechNow’s.  So the “exemption” the Commission gave SpeechNow would not be enjoyed by SpeechNow alone:  as an “exemption” it is more than “advice,” and while it is not, obviously, a judicial determination that the law is invalid, it is very similar in effect, available to all for as long as it is left in place by the courts. 

     This is, to say the least, a bold assertion of Commission authority.  Mason argues an analogy to the exemptions from disclosure granted, rarely, to organizations establishing for the protection of their members a potential threat of a harassment or reprisal if their political contributions are exposed.  (See Advisory Opinion 2003-02).  In that instance, the Commission is applied settled constitutional law, Buckley v. Valeo, 424 US 1 (1976), taking up the Court’s jurisprudence and applying it to the facts of the particular case.  This is not exactly what Mason would have the FEC do in the SpeechNow matter.  Here the core constitutional question is unsettled, though Mason makes what he can of California Medical Association v. FEC, and of the Blackmun concurrence which is very helpful to SpeechNow’s position.   453 U.S. 182 (1981).

     Chairman Mason is correct in saying that the FEC should take care with the constitutional dimensions of its choices.  He seems, in SpeechNow’s case, to have taken this sensitivity to its farthest point, where the courts usually take over.  At the same time, and in his favor, he compensates for the pinched perspective of the staff draft, which does not engage at all with SpeechNow’s constitutional claims. 

     Now two documents have emerged from this proceeding, the staff’s and the Chair’s, and they present a sharp contrast, with one turning a blind eye to the constitutional challenge and the other embracing it enthusiastically.

     SpeechNow has done well in this process.  The staff draft just rejects the SpeechNow position without any recognition of the constitutional question.  Chairman Mason has now supplemented this record with an emphatic answer to that question, in the affirmative.  Nothing, as a formal matter, has happened at the Commission this week, but SpeechNow can show that the staff effectively declined to answer the constitutional claim but the Chairman endorsed it wholeheartedly.  Vice Chair Weintraub sided with the staff, but there is so far no written record or statement of her analysis. 

     The entire proceeding, a formality, is the departure point for what will follow, and only that:  but this first phase was, for SpeechNow, a fruitful one.

Bob Bauer