The FEC Commissioners who worry that certain of their colleagues have abandoned 527 regulation refer to two disagreements over the application of the law and precedent to 2004 conduct.  This disagreement could well be squabbling over what the law was then—or, more consequentially, what it is right now. 

     The quarrel is in part an old one, about a particular piece of precedent, FEC v. Survival Education Fund, 65 F.3d 285 (2d Cir. 1995).  In 2004, when the new rules were fashioned, the Survival Education Fund case was the rationale for defining "contributions" to include any funds solicited with the indication that they would be used, in whole or in part, to support or oppose a particular federal candidate.  This was supposed to help defeat the use of clever wording to defeat the purposes of the statute.  If, regardless of the absence of "express advocacy" language", the aim of the solicitor was clear, then the law would spring from this manifestation of intent to the regulation of the money.  An organization, such as a 527, that betrayed this intent in raising money would be raising "contributions" toward the $1,000 threshold for political committee status.

     A complaint at the time, among other things, was that the case was just one, largely unnoticed case, and that the standards it articulated—allowing intent to be inferred from "indications"—would be unworkably vague.  The FEC forged ahead, and we now have a rule based on Survival Education Fund, to be read as the FEC decided to read that case.  11 C.F.R. 100.57(a).  It became effective January, 2005.

     It still grates on at least some observers of the process that the FEC essentially applied the rule prior to its effective date, on the claim that the Survival Education Fund case was good law even if the rule based on the case had not yet become law.  The agency maintained that the rule was a mere "codification".  See Supplemental Explanation and Justification, Political Committee Status.  It was then able to proceed with the application of these standards to conduct in 2004.  

      The Republican Commissioners apparently are carrying on the old dispute about whether this was defensible rulemaking or a deep wound to due process. But they may be doing more than that, and it is no less an issue of process—and not one justly resolved in their favor.

      It seems that in applying the "major purpose" test in this case, the Republicans declined to find such a purpose in the formation and operations of the November Fund.  The Fund was established only to advertise in the 2004 Presidential campaign, and then only to tout the urgency of keeping John Edwards out of the White House.  It is hard to see any purpose in the timing and conduct of this 527 other than that of promoting the defeat of the Democratic ticket.  Commissioners Bauerly and Weintraub are right to ask how this analysis squares with the one the agency used as it extracted large fines from other 2004 527s exihibiting similar, election-focused organization and communications.

      One answer could be that the Republican Commissioners believe that those cases were also wrongly decided, on standards that the agency more or less made up at the time.  Then their argument is of a piece with the objection to the use of Survival Education Fund.

       It would be an argument about the past, not the future.

      Now it is little comfort to other 2004 entities to discover that a new Commission will not stand by the decisions—very recent decisions—of the old, with the effect of different 527s being treated differently when engaged in the same type of activity.

     Worse than this, however, would be an indication that the Republican Commissioners will now refuse to follow the 2004 decisions for 527 activity in cycles after 2004.  The FEC made the decisions it made, under court supervision, and 527s since 2004 have been on full notice about the law as it stood as of January 2005.  The Commission should consistently enforce this law unless given contrary instructions from the Congress or the courts.

     The law on major questions cannot somehow change overnight just because the Commission did. 

Bob Bauer