The FEC is often caricatured as either a “sleeping watch dog” or the “speech police.”  We decided to take a more balanced look at the agency’s work in 2012, to see if we could identify broader trends or decisions that were overlooked at the time, but which seem likely to have long-term significance.  The results are here.

We found some things the agency has done quite well, such as providing clarity on the rules for texting contributions and donor-focused Internet fundraising, and defining who falls within a corporation’s restricted class. The FEC also took on some difficult tasks, such as trying to define when an ad contains text akin to the “magic words” that make it “express advocacy.”

But in other important areas, the agency was unable to provide much clarity about the law, and in some cases, drew into question previously established rules.  These include:

  • Can a Super PAC borrow video footage from a candidate’s campaign for use in an ad and still remain “independent”?
  • Does the agency regulate as “express advocacy” speech beyond Buckley’s magic words?
  • Can a domestic subsidiary of a foreign corporation establish a PAC?
  • If an independent group produces an ad that is not “coordinated” under the FEC’s regulations, may it still be prosecuted under some other statutory standard?
  • Can an employer compel its employees to participate in campaign activities to support candidates the company favors?

You can read more on these questions, as well as our look at the types of cases that generate the most significant penalties, the state of litigation post-Citizens United, and much more.

Photo of Robert Lenhard Robert Lenhard

Robert Lenhard is a member of the firm’s Election & Political Law practice group and advises corporations, trade associations, not-for-profit organizations, and high-net-worth individuals on compliance with federal and state campaign finance, lobbying, and government ethics laws.

Mr. Lenhard routinely assists clients in…

Robert Lenhard is a member of the firm’s Election & Political Law practice group and advises corporations, trade associations, not-for-profit organizations, and high-net-worth individuals on compliance with federal and state campaign finance, lobbying, and government ethics laws.

Mr. Lenhard routinely assists clients in establishing and operating federal and state PACs, compliance programs associated with campaign finance and pay-to-play laws; advises advocacy groups and their donors; conducts compliance trainings and audits of federal and state lobbying and political programs; and counsels clients on compliance with congressional gift and travel rules.

Prior to joining the firm in 2008, Mr. Lenhard served as Chairman of the Federal Election Commission (FEC) in 2007 and Vice Chairman of the agency in 2006, during which time the agency handled over 10 major rulemakings, had among its most productive years in enforcement and audit, and adopted several reforms to the enforcement process.  Mr. Lenhard has also led the Presidential Transition Team that reviewed the FEC for the incoming Obama administration in 2008-2009.