A conflict—the latest in the series—has broken out among FEC Commissioners about whether they have made public all relevant material on the General Counsel’s view of Crossroads GPS and whether it is a “political committee.” In one report, the GC concluded that the evidence supported further investigation of the question, but the Commission deadlocked, and now a private lawsuit is looming. Republicans seem to believe that the public record is incomplete and that the missing GC analysis would have a bearing on the legal merits of Crossroads’ position. Whatever the facts of the matter, this ruckus reminds readers once again of the troubled condition of the Commission’s “case-by-case,” fact-specific approach to determining “political committee” status. In 2007, the Commission adopted this approach because the alternative—a rulemaking with bright lines—could not attract the four votes needed to pass. Instead the agency, with nowhere else to turn, had to decide cases on unique facts after comprehensive inquiry, or invite organizations unwilling to gamble on the outcome to seek an Advisory Opinion before spending their money and running the legal risk of becoming a fully regulated “political committee.” Political Committee Status, 72 Fed. Reg. 5,595-02 (Feb. 7, 2007). In litigation challenging its failure to promulgate a rule, the Commission defended itself by saying that a rulemaking was “inadvisable.” See Shays v. Federal Election Commission, 424 F.Supp.2d 100, 112 (2006). But it was not inadvisable. It was simply impossible, for lack of a majority position on the Commission on the shape of the law.
Sequoia Voting Systems is accusing Dominion Voting Systems Inc. of