The Federal Election Commission (FEC) recently issued a series of rulings that may represent a move toward a more lenient interpretation of election laws. The commissioners have repeatedly split along party lines over whether to pursue possible campaign finance violations involving organizations charged with acting as political committees.

A "political committee" is defined in the Code of Federal Regulations as "any committee, club, association, or other group of persons which receives contributions aggregating in excess of $1,000 during a calendar year or which makes expenditures aggregating in excess of $1,000 during a calendar year." In Buckley v. Valeo, the U.S. Supreme Court said political committees are "organizations that are under the control of a candidate or the major purpose of which is the nomination or election of a candidate." The FEC has the responsibility of determining whether groups in question engaged in behavior intended to support the election of a candidate.

In 2007, Public Citizen filed complaints against Americans for Job Security (AJS), charging that AJS violated its 501(c)(6) tax-exempt status by airing messages intended to influence an election. The complaints argued that AJS should be considered a political committee and therefore have to disclose funding and limit contributions to $5,000 annually per contributor. After a split 3-3 decision, the FEC decided against moving forward with an investigation into the group's activities.

According to the organization's website, AJS has spent more than 95 percent of the $40 million it receives in membership dues on "direct issue advocacy," which includes television commercials, radio ads, direct mail, and telephone calls. A sampling of its recent television and radio ads is also available on its site.

According to The Campaign Finance Institute report on the 2008 election, AJS spent over $8 million in electioneering communications. 501(c)(6) organizations may engage in some partisan activity and help to influence an election, but influencing the outcome of elections cannot be the organization’s primary purpose.

Public Citizen decided to file a lawsuit on April 24 to overturn the FEC's dismissal of the AJS case. Since then, FEC commissioners have released statements of reasons regarding the dismissal. The Democratic commissioners concluded that "there is reason to believe" that some of 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). The Republican commissioners rejected the OGC conclusions and decided that AJS did not engage in any express advocacy.

A 527 organization, the American Leadership Project (ALP), was charged with failing to file as a political committee. The group released ads during the 2008 Democratic primary disapproving of then-candidate Barack Obama. At issue was whether the group expressly supported candidate Hillary Clinton and opposed Obama. The FEC once again had an insufficient number of votes to move forward with the case.

OMB Watch submitted comments to the FEC in January 2009 regarding the harm that occurs with the vague definition of express advocacy and the difficulty in determining when an organization is acting as a political committee. OMB Watch's comments note that as a result of the lack of definition, "the FEC cannot fairly or adequately enforce the rule defining express advocacy. As a practical matter, this makes it impossible for citizen groups that want to communicate with the general public to judge whether their form of communication is allowable or not, which threatens a risk of sanctions."

Effective enforcement is not possible when the FEC rules are so vague, and with recent votes to drop numerous cases, the question remains: What will it mean for upcoming campaigns?

The OMB Watch comments added, "The FEC must clarify the line between express advocacy and issue advocacy. For the sake of future enforcement cases and for continued citizen engagement in genuine issue advocacy, FEC regulations should outline in distinct language what is electoral and non-electoral activity."