Political Speech by Permit: How FEC Advisory Opinions Replaced Law with Judgment

There is a dirty secret in campaign finance law, and it is not what most people think. Everyone argues about how close is too close, whether a candidate and a PAC talked too much, or whether sharing a pollster crosses some invisible line. But the deeper scandal is the machinery that has grown up around those questions. The Federal Election Commission's advisory opinion process does not fix vague law. It institutionalizes it. Instead of clear, general rules that protect speech and restrain government, Americans now get personalized letters from six Washington officials, and often no letter at all if those six cannot get four votes. That is not a republic. That is a permit regime.

The whole arrangement is built on a simple but corrosive assumption: political speech is something you must ask permission to exercise. The Constitution never says that. The First Amendment says Congress shall make no law. It does not authorize an administrative commission to issue clearance letters for political ads. Yet for years, candidates, committees, and ordinary local groups have been shuffled into a process that treats the exercise of a constitutional right like a zoning variance.

The Conduct Prong Where Liberty Goes to Die

Under federal law, an independent expenditure becomes a contribution when it is made in cooperation, consultation, or concert with a candidate. That phrase sounds manageable. But in practice, the Federal Election Commission breaks coordination into three tests: payment, content, and conduct.

The first two are mostly factual. Did the spender pay for the communication? Does the ad reference a clearly identified candidate and run close to an election? Those questions have answers. The third test is something else entirely. Did the spender have a substantial discussion with the candidate? Did they use a common vendor? Is a consultant a former employee? Those are not definitions. They are invitations to subjective review.

A local group that hires a media buyer who once worked for the candidate two years ago may be perfectly legal, or may have committed a civil violation. The written rule does not say. The difference depends on how a bureaucrat interprets phrases like substantial discussion, which is no standard at all. It is a mood dressed up as a regulation.

So groups do the only thing they can. They petition the Commission for an advisory opinion. They submit their specific facts, their timelines, their vendor relationships, and their proposed ad copy. If the Commission can muster four votes, it issues a letter granting a safe harbor, but only for that requestor, on those facts. Everyone else keeps guessing. That is law by application, not law by statute.

Friedrich Hayek and the Knowledge Problem of Political Speech

Friedrich Hayek taught that no central planner can gather the dispersed knowledge a free people use to run an economy. The same principle applies with brutal force to political speech. Coordination is not a single fact that a commissioner can look up in a file. It is scattered across thousands of private interactions: casual conversations, shared vendors, public social media posts, overlapping staff, and offhand text messages. A central commission cannot know that context. So it writes proxies. Common vendor. Former employee. Substantial discussion. Those words are stand-ins for something the bureaucrats cannot directly observe.

The result is entirely predictable. The proxies sweep in innocent conduct because sharing a pollster proves nothing about actual agreement. At the same time, sophisticated operators who know exactly how to avoid the listed triggers escape entirely. The rules are overbroad for ordinary citizens and underinclusive for insiders.

The advisory opinion process is not a solution to that knowledge problem. It is an admission that the rules cannot stand on their own. If the underlying regulation were clear, citizens would not need to petition six appointees for permission to speak. The very existence of a thriving advisory opinion industry, with lawyers billing hundreds of hours to navigate it, is proof that the standard is broken.

A Government of Men, Not Laws

John Adams gave us the standard. We are supposed to live under a government of laws, and not of men. The FEC advisory opinion regime turns that standard on its head.

Imagine a zoning board that would tell you whether your blueprints were legal only if four of six members agreed. If they deadlocked, you could build, and maybe get fined later. For political speech, that is exactly how the system works. A citizen who asks and receives an advisory opinion gets a personalized safe harbor. His neighbor in a similar but not identical situation gets silence. That is the very definition of rule by men. The law changes, or fails to appear, based on how six political appointees vote on a given day.

Worse, if the Commission deadlocks three to three, it issues no opinion at all. The applicant learns nothing. But the risk of enforcement does not disappear. You are left exactly where you started, except now you have spent time, money, and legal fees to be told that the government cannot agree on what the law says. That is not clarity. That is a chilling effect by design.

Justice Antonin Scalia spent a career reminding us that the Constitution is enduring, not a living organism to be stretched by the political whims of judges. The First Amendment is the clearest part of that enduring text. It does not say Congress shall make no law except when a commission grants a safe harbor. It says Congress shall make no law. The advisory opinion racket effectively amends that sentence without a constitutional convention.

The fact that the Commission calls these documents advisory only makes the problem worse. Citizens are expected to request them, rely on them, and order their conduct around them. But when the Commission cannot produce an opinion, the advisory process provides none of the predictability the First Amendment demands. You cannot build a free political system on the hope that six people will agree about your speech.

Thomas Sowell and the Unseen Consequences

Thomas Sowell teaches us to judge policies by results, not intentions. The intention of coordination rules is to stop candidates from laundering contributions. The result is a two-tier speech system.

Wealthy, well-funded groups with election-law counsel use the advisory process strategically. They can test boundaries, request opinions, and obtain a safe harbor before they spend a dollar. Ordinary Americans see a maze of conduct prongs and stay silent. That means more speech for the sophisticated and less for the citizen.

Complexity is a form of suppression. The advisory opinion racket does not stop collusion. It taxes speech with uncertainty. That is the seen and the unseen in action. The visible benefit is the occasional enforcement case. The invisible cost is the brochure that never gets mailed because the local group feared hiring the wrong consultant. The radio ad that never airs because no one could say definitively whether a shared vendor created a violation. The committee that never forms. The issue group that decides politics is too dangerous and retreats to apolitical charity work. Those are real losses to self-government, and they do not show up in the Commission's annual report.

Reverse the burden. Suppose the government had to prove actual coordination beyond a reasonable doubt, and the rules were written with enough clarity that ordinary people could read them. Would some collusion go unpunished? Probably. But that is the price of free speech. We do not abolish the Fourth Amendment because some criminals go free. We do not gut the First because some candidates might coordinate.

The unseen costs of the current system are enormous precisely because they are unseen. That is the Sowell lens applied to campaign finance. A rule that looks protective on paper may quietly suppress more speech than any criminal penalty ever could.

The Objection and the Answer

Some will say that without coordination enforcement, super PACs would become arms of campaigns, and contribution limits would be meaningless.

It is a fair point, if you accept the current contribution-limit regime as sacred. But we do not have to choose between no rules and ad hoc permission slips. A constitutionally respectable rule would be clear, objective, and generally applicable. Bright lines, such as no direct payments, no written requests, and no private strategic information, could give citizens real notice. Subjective substantial discussion tests cannot.

Better yet, we should question the premise that political speech requires this level of government oversight at all. The Founders did not create the Federal Election Commission. They wrote the First Amendment. Every additional layer of administrative interpretation gives government more power to decide which speech is allowed. That is not liberty. That is the slow bureaucratic suffocation of it.

If the concern is corruption, then write a law that forbids actual corruption, defined narrowly, enforced rigorously, and not dependent on a commissioner's mood about what counts as a common vendor. If the concern is disclosure, then require disclosure and let the voters judge. What we should not do is maintain a system in which speech is presumptively illegal unless a federal agency blesses it.

What Is at Stake

The central scandal is not any single advisory opinion. It is the system itself. We have accepted the idea that political speech is something you must ask permission to exercise. That is backward.

The Constitution promises that Congress shall make no law. It does not promise you a personalized clearance letter from a commission. The moment a citizen must petition bureaucrats for permission to speak, the First Amendment has already been short-circuited.

The right answer is not better advisory opinions. It is clearer rules, narrower statutes, and judges willing to say plainly that a speech-licensing regime is unconstitutional on its face. Anything less is a government of men deciding who may speak, and a republic cannot long survive on that foundation.

The advisory opinion racket is not a concession to complexity. It is a giveaway to the permanent political class. The sooner we recognize it as an assault on self-government, the sooner we can return political speech to the free people to whom it belongs.