The FEC tries to make up its mind, case by case, whether an organization distributing political material is a “press entity” engaged in a “legitimate” press function.  It concluded some time ago that Citizens United was a press organization when producing and distributing documentaries.  Advisory Opinion 2010-08 (June 11, 2010). This year it could not decide whether to bestow similar grace on another documentary producer, one who evidently does not care for President Obama.

Commissioner Weintraub tersely noted that the producer sent free samples of his product to millions of households in 2012 “swing states.”  This was enough for her to conclude that the producer may have been a "press entity" but it was not acting like one: it was not engaged in a “legitimate” press function.

The General Counsel reached a different conclusion and recommended that the FEC let things go—that it exercise its broad discretion in the producer’s favor.  It seemed to agency counsel that this particular press entity was acting legitimately enough. The General Counsel credited the claim that the free distribution was a commercial promotion and not only, if predominantly, in “swing states.”  The producer appeared to have demonstrated sufficient commercial or business purpose by arranging for sales through websites and via Amazon, and by contracting for streaming services through both Amazon and Netflix.

Commissioner Goodman, joining his Republicans in voting with the General Counsel, added a charge that the Democratic objections were a threat to press freedom.

Democrats and Republicans are disputing once again the agency’s record in dealing with contributions made to candidates through LLCs without disclosure of the original source.

The Republican Commissioners say that the law is unclear and, absent a clear purpose to evade reporting requirements, there is no justification for enforcement.  From the outside, Brad Smith agrees, and he questions why the Democrats won’t give up on enforcement actions on which there is no agreement and simply work on a rulemaking to establish clear, concrete rules.

Commissioners Weintraub and Ravel have replied with a Statement calling into question the Commissioners' good faith on the issue.  They were prepared, they note, to dispense with penalties in recent enforcement cases if the Republicans would join with them in a sensible and unequivocal statement of the law, and they don’t accept as sensible an intent or purpose-based test.

Taking the claims on each side at face value—crediting the Commissioners with meaning only what they say—one can ask: what is this argument about?  The very skilled Smith has shown that someone so inclined could defend the proposition that that there was really some doubt about the law and a donor might imagine that she could set up an LLC or use an existing one to make a contribution that would be reported only in its name and not in hers .  Elsewhere, here included, there has been doubt that there could be any doubt. Lawyers disagree.

But among the Commissioners the legal disagreements are at bottom the product of fundamental divisions over how this law--this kind of law--should be enforced. The Republicans believe, as they long have, that campaign finance laws enacted within constitutional limits should be limited in ambition and very clear.  The one goal is related to the other.  The narrower in scope, the less ambiguity in the law.  Behind this is the fear that laws of this nature are dangerous in potential effect on speech and association.  The extent of the danger varies with the extent of the ambition and of the ambiguity.  This puts the Republicans on guard, to the point of either paralysis or obstruction, depending on the point of view.

The Federal Election Commission’s job is hard, harder than many will admit, but the agency somehow manages to make it even harder. So now, five years after the fact, the FEC has decided not to investigate a donor's alleged use of an LLC to mask a $1 million contribution to a Super PAC.  The word of the non-decision got out before any member of the FEC could explain it or any of the case materials were released.

So naturally the agency looks somewhat silly.  Some might and do ask: how could it be that the alleged establishment of an LLC to mask the true source of a large contribution isn't even subject to an investigation?  And why would it take almost five years for that inconclusive result to be reached?  Maybe the case files once released, along with the explanations of the different Commissioners, will provide some answer to those questions.

The case did take an unusual turn in 2011 when the individual donor came forward, claimed that a lawyer had advised him that he could do this, and asked that the Super PAC amend its reports to disclose him as the true donor.  In other words: on the date that the complaint was filed and before the FEC began its review, the harm of the particular case was being redressed.  And presumably complicating matters was the donor’s contention that he acted on legal advice.

The 10th Circuit decided another disclosure case, Coalition for Secular Government v. Williams, on the mandatory reporting of “issue speech”.  It held that an individual collecting small sums to wage a campaign on ballot questions did not have to comply with registration and disclosure requirements applicable under state law to “issue committees.”  The "committee" that was really just a one-person enterprise was too "small scale,” the government's interests too limited: the cost in the particular case exceeded the benefits.

Did this result turn in any way on the nature of the advocacy – – that it was on issues, not for or against candidates?  The courts have long distinguished electoral from issue speech in determining the scope of constitutional protections.  Buckley v. Valeo, 424 U.S. 1(1976); Citizens against Rent Control v. Berkeley, 454 U.S. 290 (1981); First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978).  The government's interests in the case of campaign speech are more varied and include both the prevention of corruption and its appearance, and the assistance that disclosure provides to enforcement of contribution and other regulatory limits.  The 10th Circuit found those rationales “irrelevant or inapplicable to issue committees,” and while it has upheld Colorado's issue committee disclosure in principle on the strength of another interest, the voters’ informational interest, it concluded that this interest was insufficient to sustain the law as applied to the Coalition for Secular Government.

In campaign finance law, this distinction between issues and campaign speech has led reform advocates and their allies in legislatures to insist that while the difference may matter to constitutional analysis some of the time, this cannot be not the case all of the time.  They maintain that some issue speech is often campaign speech in disguise, and the Supreme Court in McConnell upheld "electioneering communication" disclosure on the basis of its finding that some issue speech was a “sham.”  Now the courts must entertain claims in as applied to cases that the plaintiffs’ issue speech is not a sham, that it is the real thing, and that it cannot be regulated as campaign finance spending.

The case brought by the Independence Institute against the “electioneering communication” disclosure requirement enacted by McCain-Feingold could prove to be highly significant.  This is an as-applied challenge; it contests the mandatory reporting of a "pure" issue ad if, within specified days prior to an election, it refers to a public official who is also a candidate for federal office. Some believe that this claim was foreclosed by McConnell v. FEC and Citizens United.  Independence Institute disagrees, arguing that the Court has never held that issue speech loses constitutional protection against disclosure, including donor disclosure, just because it airs during an election season.

What may stand in the way are summary comments the Court has made, most notably in Citizens United, where the Justices suggested that it did not matter to the application of the electioneering communication requirement whether a communication contained the “functional equivalent of express advocacy.”  558 U.S. 310, 369.  One reading is that the Court had no patience with disclosure objections, end of story. Even a "pure" issue ad—even such an ad run with no apparent electioneering interest or motive –is subject to disclosure if it includes a reference to a public official who was a candidate.

Perhaps this is what the Court intended to say, but this interpretation puts considerable weight on general statements and very little or none at all on the line of authority established by Buckley that campaign finance law could not override the distinction in the constitutional law between campaign and issues speech.