Following the Federal Election Commission's (FEC) decision to dismiss the case against a 501(c)(6) organization Americans for Job Security without issuing any explanation, the FEC Commissioners recently issued Statements of Reasons. The Democrat Commissioners concluded that the AJS messages appeared to contain express advocacy, and therefore may be subject to campaign finance laws. They supported the Factual and Legal Analysis prepared by the Office of General Counsel (OGC) and attached the OGC's recommendations with their statement.

Alternatively, the Republican Commissioners' 21 page statement rejects the OGC conclusions and instead decides the group did not engage in express advocacy. The case appears to have been dropped because of two different understandings of what constitutes express advocacy (11 CFR 100.22). Particularly 11 CFR 100.22(b) which defines express advocacy as a message that can "only be interpreted by a reasonable person as containing advocacy of the election or defeat of one or more clearly identified candidate(s) because— [. . .] the communication is unmistakable, unambiguous, and suggestive of only one meaning; and (2) Reasonable minds could not differ as to whether it encourages actions to elect or defeat" The Republican Commissioners state: "Even assuming arguendo that the plain language of section 100.22 is constitutional and enforceable, the ads do not come within the regulatory reach of either section 100.22(a) or (b)." They concluded that none of the ads at issue were "unmistakable, unambiguous and suggestive of only one meaning," and therefore, none of the ads satisfied the express advocacy standard.

The consequences for these recent FEC "decisions" may play out during the 2010 election season, with perhaps more groups willing to get close to the line between express advocacy and permissible issue advocacy. After all, are there any consequences? Three seats on the six-member commission are now available to be filled by President Obama, however, any changes may not occur for some time. An editorial in Roll Call ($$) calls on President Obama to act quickly to nominate new commissioners. "If Obama does not take advantage of his opportunity to reshape the commission, he will leave it gradually drifting toward irrelevance. Supposedly created to enforce the nation’s campaign finance laws, the FEC is becoming an anti-enforcement agency."