Skepticseye.com

The FEC’s draft justification of its political committee status is a great read for campaign finance geeks. No, really. As someone who generally supported the “contribution” and 50% allocation rules promulgated in 2004, you’d expect I’d be on board with a more thorough defense of their validity.

I’m not sure but that the FEC explanation invites more problems, however. That is, I suspect that its explanation and application of “major purpose” - which, as alert readers know is found nowhere in the statute or regs, just in a handful of confusing case precedents - will invite more trouble.

As the FEC explains it, to determine whether a group is a political committee, one first looks at whether they received contributions or make expenditures past the $1,000 statutory threshold. Fair enough. Then, the FEC recognizes that only groups with the “major purpose” of engaging in federal campaign activity can be required to register, report and follow the finance restrictions.

What counts as “federal campaign activity?” That’s where I think the articulated standards are a bit off, and may be better if promulgated in a regulation, with some notice and comment to hash out the vagaries.

The FEC’s declares that public statements are instructive of “purpose.” But are these weighed at all - that is, if the public statement says something about the importance of a federal election and a ballot measure, is this a statement supporting a “major purpose” finding? Or is this a “mixed message” “advocating both issue discussion and advocacy of a political result” that the courts say we protect from political committee status? Moreover, some of the statements considered in the discussion of specific enforcement matters are made to donors in “thank you” notes. One wonders how good an indication those would be of true “purpose” - groups tend to tell donors what they think they are interested in hearing.

How about communications with members - otherwise insulated from regulation as “expenditures.”? Do they count?
The standard hinted at in MCFL is clearer, but not as broad (so not as much fun). There, the Court suggests (in dicta, no less, but who’s counting?) that a group’s independent express advocacy could become so extensive as to give it a “major purpose” and political committee stattus. Does this mean we should only count statutory “expenditures” in the mix?

Again, I do not support a rule that treats 527s as presumed political committees. The FEC’s explanation on that point is persuasive, I think. But I’m not sure the FEC is presently using sufficiently clear or legally supported standards in its political committee matters. I’m still one of those who believes the world would be a better place if we really knew what “major purpose” meant.