American Crossroads Makes Absurd Request to FEC to Use Absurd FEC Regulation to Treat Coordinated Activities as Not Coordinated
American Crossroads is the brainchild of political operative Karl Rove.
On October 28, 2011, the Rove inspired organization asked the FEC to declare that expenditures by American Crossroads for TV ads to promote certain candidates that would be “fully coordinated” with those candidates and that would even have those candidates appearing in the ads are not “coordinated expenditures” with those candidates.
Where is George Orwell when we need him?
The Americans Crossroads request for an FEC Advisory Opinion to this effect represents an absurd effort by the organization to use an absurd FEC regulation to ignore common sense and the plain meaning of the law: an outside spending group and a candidate cannot coordinate on the expenditures by the group to influence the candidate’s election.
In Buckley v. Valeo (1976), the landmark Supreme Court decision on campaign finance, the Court explained that expenditures that were independent of a candidate did not “pose dangers of real or apparent corruption comparable to those identified with large campaign contributions.”
The Court stated:
The absence of prearrangement and coordination of an expenditure with the candidate or his agent not only undermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.
Now let’s look at what American Crossroads says it wants the FEC to approve as “independent expenditures:"
These advertisements would be fully coordinated with incumbent Members of Congress facing re-election in 2012 insofar as each Member would be consulted on the advertisement script and would appear in the advertisement.
But the Supreme Court held that “independent expenditures” did not pose a threat of corruption only because of the “absence of prearrangement and coordination” between the spender and the candidate.
In the Alice-in-Wonderland world of American Crossroads, however, the organization is admitting that the candidate will not only be “consulted” on the script, but will appear in the ad, and that the ads will be “fully coordinated” with the candidate. This is what American Crossroads wants the FEC to sign off on as an “independent expenditure.”
American Crossroads wants to make use of an FEC coordination regulation that was adopted only after the federal courts twice threw out earlier regulations on coordination. In those cases, the Democracy 21 Legal Team represented former Representatives Christopher Shays and Marty Meehan who successfully challenged the FEC regulations.
But the new regulation adopted by the FEC in response to the court decisions is also contrary to law, because it says that where ads are run more than 90 days before an election the coordination rules apply only to ads which contain express advocacy (or its functional equivalent).
This makes no sense because ads can promote a candidate even without express advocacy. And where a candidate and outside spender coordinate on such ads – indeed where the candidate even appears in the ads, this is precisely the kind of coordination that the Supreme Court said should be treated as a contribution subject to the candidate contribution limits.
American Crossroads and the FEC are living in fantasy land and neither the FEC regulation nor the American Crossroads Advisory Opinion Request can stand the light of day.
The dysfunctional FEC needs to rise to the occasion and flatly reject this ridiculous effort by American Crossroads to make a mockery of the nation’s campaign finance laws.
