FEC Super PAC Coordination Advisory Opinions Are Permission Slips for Political Speech

Every few months, the Federal Election Commission hands down another advisory opinion on super PAC coordination, and the political press treats it like a weather report. Will this particular ad get struck by lightning? Will that group face a fine? The coverage almost always misses the deeper problem. I want to say the quiet part out loud. We have quietly built a system in which Americans must ask permission from six unelected commissioners before they spend money to talk about politics.

The advisory opinion process is not some minor technicality buried in campaign finance law. It is a speech-licensing regime wearing a legal costume. Every time we accept it as normal, we drift further from the First Amendment and from the constitutional republic the Founders actually designed.

The fog of coordination

Super PACs exist because of a legal fiction. They are supposed to be independent. They can raise and spend unlimited money only if they do not coordinate with a candidate or a campaign. Coordinate, and the spending becomes an in-kind contribution, subject to contribution limits and all the disclosure rules that come with them.

So the government has to draw a line between independent speech and coordinated spending. But that line is not a line. It is a fog. The Federal Election Commission uses a multi-prong test for coordinated communication. It includes vague concepts like material restriction, substantial discussion, common vendor, and conduct. Depending on which commissioners are in the room on any given day, the same advertisement can be described as protected issue advocacy or as an illegal campaign contribution.

This is not an abstract problem. Imagine a group of neighbors in Ohio who want to run a radio ad criticizing their congressman for a spending vote. If one of those neighbors once consulted for the congressman's opponent six years ago, is that coordination? If the group's media buyer once worked for a state party committee, does that trigger the conduct prong? The answer is not sitting clearly in the statute. It is scattered across a series of advisory opinions, internal guidance documents, and lawyer-to-client warnings that no ordinary citizen can parse without spending thousands of dollars on election law counsel.

That is the point. The complexity is the product. If the rules were clear, you would not need the FEC to tell you what they mean. But the rules are deliberately, maddeningly unclear. The people who have money and lawyers get a roadmap. Everyone else gets a reason to stay quiet.

Speech licensing by another name

The First Amendment says Congress shall make no law abridging the freedom of speech. It does not say speech may proceed only after a thirty-day comment period and a favorable vote of four commissioners. Yet that is exactly how the super PAC advisory opinion process works.

Here is the mechanics. A super PAC hires a team of election lawyers, often former FEC staff, and files a detailed request describing a proposed advertisement. The commission, if it can manage a quorum and avoid the three-three deadlocks that now define the agency, issues an opinion. Follow that opinion and you are safe. Do not ask, or ask and get no answer, and every ad becomes a legal gamble.

That is a prior restraint in all but name. The Supreme Court has said for generations that prior restraints on speech are the most dangerous form of censorship because they chill speech before it happens. An advisory opinion regime does the same thing, but with better public relations. It does not say you cannot speak. It just makes the cost of speaking without permission so high that most people do not try.

It also creates a two-tier system. A well-funded super PAC with elite counsel gets a safe harbor. A local group of volunteers with a few hundred dollars gets a warning. The First Amendment was written to protect the second group at least as much as the first. But the modern FEC has turned the right to speak into a compliance exercise, available on favorable terms only to those who can afford the toll.

A government of men, not laws

The deeper constitutional problem is that this is government by unaccountable discretion, not the rule of law. Congress writes vague laws. The FEC fills the gaps with advisory opinions. The rest of us are supposed to pretend that this is how a constitutional republic operates.

It is not. Article I of the Constitution vests legislative power in Congress. It does not vest it in six commissioners who issue case-by-case rulings about political speech. Yet we have drifted so far from the original design that we accept an agency making law through advisory opinions without a second thought.

John Adams called a free society a government of laws, and not of men. The advisory opinion process is a government of men and women who decide, behind heavily lawyered filings and split votes, what the law means today. The same factual situation can produce different results depending on the political composition of the commission. That is not law. That is discretion wearing a legal robe.

The problem is compounded by the fact that the underlying statutes are so vague that no person of ordinary intelligence can know in advance whether particular speech is legal. The Supreme Court has long held that vague laws violate due process because they force ordinary citizens to guess at their meaning and leave enforcement to the arbitrary judgment of officials. If the FEC's coordination rules require an advisory opinion to understand, then the rules themselves are unconstitutional. The remedy is not more advisory opinions. It is a clear, narrow rule, or better yet, no rule at all.

The objection that sounds reasonable

Some will object that advisory opinions provide clarity and help innocent people comply with the law. But this gets the problem exactly backward. If you need an advisory opinion to know whether your speech is legal, the law is already unconstitutionally vague. Clarity that comes only through a discretionary government ruling is not clarity. It is permission.

Think about the seen and the unseen, as Henry Hazlitt taught. The seen benefit is a few well-lawyered super PACs getting a compliance map. The unseen cost is the speech that never happens because ordinary Americans, small groups, and new entrants fear the fog. A church group that wants to run an ad about a state judge. A local business owner who wants to criticize a city council vote. A new political committee that cannot afford a former FEC lawyer. All of them hesitate. Some of them simply stay silent. The First Amendment exists precisely so that citizens do not need a license to criticize their government.

When the FEC turns political speech into a regulatory specialty, it does not prevent corruption. It protects incumbents and the connected from upstarts and outsiders. The advisory opinion process is not a neutral referee. It is a bouncer at the door of the political arena, and the bouncer knows exactly whose name is on the list.

The real fix is not a better advisory opinion. It is to remember what the Supreme Court said in Citizens United. Independent spending does not corrupt. The only legitimate government interest in regulating campaign finance is preventing quid pro quo corruption or its appearance, actual bribery rather than mere disagreement or shared political goals. If the government suspects a super PAC is acting as an arm of a campaign, let the government prove that in court with evidence under the ordinary rules of due process. The burden should be on the government, not on the speaker.

The advisory opinion process flips that burden. It forces the speaker to prove his independence to a commission before he is allowed to speak. In a free republic, that is exactly backward.

What actually fixes this

Madison saw this coming. In Federalist No. 10, he warned that liberty is to faction what air is to fire. You cannot abolish liberty to cure faction without committing a greater folly than wishing away the air to prevent fire. The answer to the dangers of faction is not to suffocate political speech. It is to let speech compete openly, so that bad ideas are defeated in public rather than suppressed by bureaucrats.

Super PACs are just people pooling their money to speak about the future of their country. They are no more or less virtuous than any other collection of citizens. If they are genuinely independent, leave them alone. If the government suspects actual corruption, prove it in a court of law. Everything else, advisory opinions, safe harbors, multi-prong tests, is a permission slip.

Permission slips have no place in a free society. The Constitution does not require Americans to ask the FEC's blessing before they speak. It requires the government to leave them alone. It is time we started acting like that is true.