The news out of yesterday's Federal Election Commission (FEC) meeting is that there is, yet again, no news to report.  The FEC has delayed a final vote on an advisory opinion which was jointly requested by the Democratic Senatorial Campaign Committee, the Democratic Congressional Campaign Committee, the Republican National Committee, the National Republican Senatorial Committee, and the National Republican Congressional Committee. If this stalemate continues, it will be merely the latest in an unprecedented string of partisan deadlocks.

By law, no more than three of the six commissioners may be drawn from the same political party.  Because the FEC can only take action when at least four commissioners agree, its decisions have always been subject to partisan deadlock.  However, as a 2009 Washington Post editorial put it, "[T]hose deadlocks have tended to arise sporadically, and in ideologically or politically charged cases, not in run-of-the-mill enforcement actions."  Until 2008, the FEC was able to reach a decision more than 98 percent of the time.

But two years ago, this trend was reversed.  The agency was stymied by a partisan deadlock 16 percent of the time in 2009 and 11 percent of the time in 2010.  A recent New York Times editorial lays out two of the most recent examples: on March 4, the FEC was unable to approve its professional staff's recommendations for enforcement actions against two state political parties (the Kansas Republican Party and the Georgia Democratic Party) which had clearly violated campaign finance laws. 

Things are only going to get worse next month, because five of the six commissioners' terms will expire by April 30.  Last week, a number of campaign finance reform groups sent a letter to President Obama urging him to move to nominate new commissioners.  Unless that happens, it seems likely that the biggest news out of the FEC will continue to be no news at all.

The Senate voted yesterday to extend expiring provisions of the PATRIOT Act until May 27. The House had voted to extend the provisions until December 8; today, the House agreed to consider the Senate version. The House and Senate have to agree before Feb. 28 or the provisions will expire.

The bill, which passed the Senate 86-12, extends three controversial provisions of the intelligence law. The expiring provisions authorize the secret Foreign Intelligence Surveillance Court to grant warrants to federal investigators for "roving wiretaps" of an individual; for surveillance of a foreign citizen, even without showing that the person is a terrorist or foreign agent; and for "business records," including library records.

Either date would require Congress to revisit the issue later this year, which suggests a willingness to more fully debate the provisions. Before yesterday's vote, Senate Majority Leader Harry Reid (D-NV) pledged that the Senate would allow "an extended period of time–a week at least–to offer amendments and do whatever people feel is appropriate on this bill."

Congress has several options with regard to the expiring provisions:

• Extend the provisions again, with or without reforms
• Make the provisions permanent, with or without reforms
• Allow the provisions to expire

Some Senators are already staking out their position. Sen. Patrick Leahy (D-VT) has introduced a bill to extend and reform these and other provisions, adding transparency and oversight mechanisms. Meanwhile, Sen. Rand Paul (R-KY) issued a statement opposing any extension.

As they currently stand, the provisions imperil both government transparency and nonprofit rights. It'd be a shame if Congress misses this opportunity to vigorously examine the necessity, effects, and constitutionality of these provisions.

With a 5-1 vote, the Federal Election Commission (FEC) approved a rule on coordinated communications, to regulate messages that are the "functional equivalent of express advocacy" for or against candidates. This "functional equivalent" language comes from the 2007 Supreme Court decision in Wisconsin Right to Life Inc. v. FEC. A separate provision was voted down and would have covered all messages that "promote, support, attack or oppose" candidates. The final rule does not include a proposed safe harbor for communications where federal candidates endorse or solicit support for 501(c)(3) nonprofit organizations, and the policies of those organizations.

The FEC's coordination rule address when spending on political communications by outside groups is considered coordinated with a candidate, and therefore subject to certain restrictions. Messages that are deemed independent of a campaign are not subject to FEC rules. BNA Money and Politics ($$) reports; "It remained unclear, however, how much real guidance the FEC rule would provide to political groups in determining whether and how their spending will be subject to FEC regulation."

Commissioners could not agree on examples of messages that would be regulated under the new rule. "FEC commissioners acknowledged that the agency could be sued yet again over the so-called coordination rule, which has been challenged three times since it was written to implement the 2002 Bipartisan Campaign Reform Act."

The FEC also approved a rule to define regulated federal election activity. The new rule requires the use of hard money for voter registration activity in federal elections which is "encouraging or urging" a group of potential voters to register and vote. Both rulemakings were required by a 2008 federal appeals court decision in Shays v. FEC (Shays III).

Earlier this week, the three Republican members of the Federal Election Commission (FEC) released a statement of reasons explaining their votes in May to dismiss a case against a no longer active 501(c)(4) group, Freedom's Watch. The Washington Independent says that the material released "bodes particularly ill for the chances of any form of meaningful campaign finance disclosure from independent groups during the upcoming election cycle."

After a 2008 ad titled "Family Taxes," the Democratic Congressional Campaign Committee (DCCC) filed a complaint charging that the group violated FEC rules by failing to report the donors who paid for the ad. The Republican commissioners interpreted the disclosure rules to require information about donations "only if such donations are made for the purpose of furthering" a specific ad.

The statement of reasons says, "there is no specific evidence to contradict the assertion of Freedom's Watch that all funds contributed during 2008 were for general purposes." However, if a group primarily engages in producing electioneering communications, wouldn't donations likely go towards producing the ads? As opponents of the DISCLOSE Act have argued, existing disclosure requirements are adequate to reveal who is funding campaign ads. However such rules, as demonstrated with this case, can easily be avoided.

According to BNA Money and Politics ($$), their "statement is relevant to ongoing questions about when groups funding ads or other campaign spending must disclose donors. Despite recent requests by FEC staff that some of these groups provide information about their donors, the GOP commissioners' statement indicates they would vote to require disclosure only when it can be demonstrated that a specific donation was linked to a specific ad."