What first makes a strong impression is the Federal Election Commission’s inability to decide whether an ad is ambiguous in its meaning if it closes with: "Barack Obama, a candidate whose word you can't believe in".   Three Commissioners thought there was a possible interpretation saving it from campaign finance regulation: they believed that the words could be read as other than an appeal to vote for or against a specific candidate.  Rick Hasen declares that the law is now "beyond" incoherence.

     This decision is without a doubt remarkable, in part for the reason that Hasen notes.  Not to be overlooked is another reason:  for neither this ad, nor for another it ruled on, does the Commission offer any explanation for its conclusion.

     The other ad ended with a statement by the sponsor that, on a disputed question, it was right and Obama, was wrong.  The Commission decided that this one was sufficiently open to interpretation that it could be paid with corporate funds.  This is all the Commission could offer: a decision, without an analysis.

     No analysis for this conclusion; no analysis for the other.  National Right to Life asked and the agency answered, yea or nay.

     It is not exceptional that the Commission would delete an agreed statement on a non-decision.  For a decision, however, where a majority came to a conclusion that an ad qualified as exempt "grassroots lobbying", there might have been room for explanation.

     To blame the agency for this silence is somewhat unfair.  The Commissioners have to work with what the Court has given to them, and some would argue that it is in the nature of the WRTL test that either one agrees that there are "reasonable" alternative readings of an ad, or one does not.  Agreement will be sensitive, one assumes, to individual Commissioner perspectives on campaign finance regulation. 

     The first ad, attacking candidate Obama’s "word", might have seemed like an easy enough case.  But three Commissioners felt otherwise, and the emphasis should fall firmly on "felt", on emotion or instinct guiding them in the direction of their constitutional and ideological commitments.  With no majority for one position or the other, no answer could be given.  The reason for the failure to answer is, on its face, the failure to agree.

     On the second ad, there was disagreement but also a majority for an outcome, and the Commission could have spoken for its choice.  It did not.  It is fairly assumed that the majority shaped its decision around instructive analysis of some kind, and a little bit of this analysis—some sense of it—would have been helpful.  The agency (one hopes) examined the ad under the terms of its own rules, and those regulations, in turn, refer to specific examples of ads that would fall or do not fall within a "safe harbor"; or that fall outside the safe harbor and either still qualify—or don’t—for the exemption.  So how did the agency analyze the ads under its rules, with which, if any, examples serving as fruitful guidance? 

     What kind of "example" would this Opinion make?  

Bob Bauer