It certainly bears notice when the Federal Election Commission decides in bipartisan fashion a case brought by a Republican against a Democrat—(and vice versa, of course). The Commission did that recently, dismissing a Republican Senate candidate’s complaint that a Democratic gubernatorial candidate ran a soft-money attack ad against him.

The precise legal question was whether the Democrat had used language in his ad that “promoted, attacked supported or, opposed” the Republican.  This is know as the PASO standard: a communication containing PASO, and in that way favoring or opposing a federal candidate, cannot be paid for with soft money. 2 U.S.C. § 441i(f)(1); 11 C.F.R. § 300.71.  The Commission resolved the case in the exercise of its “prosecutorial discretion,” and this is what is most interesting about the case: the agency wasn’t sure, or would not say, whether the legal test of liability, the PASO test, had been met, but decided to pass on further proceedings anyhow.

Attention has been paid to the Statement of Reasons issued by Commissioner Lee Goodman, who is confident that there had been no PASO in the ad, but also suggests that the provision of the law in question, a product of McCain-Feingold, has been overtaken by Citizens United.  As independent speech, the Commissioner argues, it is protected by that case: it can be paid for with soft money.

Rick Hasen reports a reader’s judgment that Goodman effectively blew on his “dog whistle” for a constitutional challenge.  Whether or not this was the Commissioner’s intention,  the case is a fairly compelling demonstration that (1) the PASO standard is disastrously vague and unworkable, and the Commission’s disposition did little to help matters; and (2) it is better that someone challenge this law and have us rid of PASO, because otherwise the test will limp along in the halls of the Federal Election Commission, without any possibility of legislative action to correct the problem.

In the legal analysis that the Commission produced in support of its decision, it notes that “neither Congress nor the Commission has defined the concept” of PASO.  Factual and Legal Analysis, Matter Under Review 6684 (Nov. 26, 2013) at 5.  Nevertheless, the Commission is left to deal with the situation, having been advised by the Supreme Court, in McConnell v. FEC, that the PASO standard is sufficiently explicit to “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited.”  McConnell v. FEC, 540 U.S. 93, 170 n.64 (2003).  The advertisement in this case could be read either way, the agency concedes: it is willing to assume “arguendo”  that the advertisement could be interpreted to include PASO.  Factual and Legal Analysis at 6.  In other words, some might say that it contains PASO, others that it does not. But, in the end, because the “ad focuses on the Indiana gubernatorial election and does not exhort viewers to vote against [the Senate candidate],” the Commission elected not to proceed and dismissed the complaint as an act of prosecutorial discretion.

The legal analysis behind his judgment is difficult to grasp, because the statute requires attention to the presence of PASO in the ad, not to its overall “focus.” It would seem that an ad with a state electoral focus could still include PASO.  In exercising its prosecutorial discretion, however, the commissioners had to say something, and so this is what it had the votes to say.

The case, then, was decided inconclusively on the question of what PASO is, and those who consult  it for guidance in some future challenge will be disappointed—even those possessing “ordinary intelligence,” a level of cognitive capacity that the Court  in McConnell also declined to define. In the meantime, the agency is plainly struggling to meet its responsibility for the clean, conclusive interpretative guidance that the PASO standard quite hopelessly calls for. This has happened before, when the Commission could not agree on the presence or absence of PASO and could not proceed for want of four votes. In this new PASO case, unable to decide on an interpretation, the Commission chose to sidestep the problem, give up the chase and let the respondent go.

Commissioner Goodman’s Statement of Reasons reinforces the point that in voting as he did, he was taking the firm position that the advertisement lacked PASO because it “focused on the gubernatorial election.” Then he turns to his main business, which is to warn that the rule in question did not survive Citizens United, at least as applied to independent speech by state candidates. On this point, the Commissioner is quite right.

On the more general question of PASO, it would be nice, of course, if Congress had defined the term, or if the Commission could arrive at some reasonably firm definition that everyone would agree is accessible to those of “ordinary intelligence.” But Hasen’s reader is perhaps correct:  Commissioner Goodman may have concluded that the only recourse lies with the Court, and there is every reason to believe that if this issue comes before it, the Justices will resolve it in the way that the Commissioner hopes for.