— The Federal Election Commission deadlocked Thursday over a proposal by the Democratic Governors Association to set up an organization that could engage in federal elections — a result that effectively permits the new group to go forward.
After a series of meetings and hours of debate, the five members of the commission wound up in essentially the same position they began: a de facto party-line vote that will allow the DGA to create a group called Jobs & Opportunity that will expand its electoral reach.
DGA officials say they have no intention of using Jobs & Opportunity to engage in congressional or presidential elections. Their only goal, they say, is to pay for get-out-the-vote and similar activities in governors' races.
But federal election law defines those efforts as "federal election activity" if they take place at the same time as federal races. For instance, registering thousands of new Democratic voters in a governor's race can also influence presidential and congressional contests.
The request comes as Maryland Gov. Martin O'Malley, the finance chairman of the DGA, is considering a run for president in 2016. His aides as well as DGA officials have said he had no role in the idea. They have also noted there are easier methods to help whoever is the Democratic nominee in 2016.
"I appreciate that you all have struggled with this and have given it the attention you have," the DGA's attorney, Marc Elias, told the commissioners during Thursday's hearing.
Elias deferred questions on the issue to the DGA. A spokesman for the group did not respond to a request for comment.
The three Republican commissioners voted to allow the DGA to create Jobs & Opportunity. Two Democrats opposed the idea. Four votes were required for the FEC to take a position. The result effectively allows the DGA to proceed with its plan, officials said. It's unlikely that a future commission — even if it decided to tackle the issue again — would be able to launch an enforcement action, since the current commissioners could not come to a conclusion.
Campaign finance watchdogs are concerned that Jobs & Opportunity will be a new vehicle to get around a law that prohibits some groups, including the DGA, from spending "soft money" on federal elections. Soft money is given to third-party groups and can be used for voter-turnout activities and ads that influence elections. There are no limits on how much donors may give.
Commissioners debated for hours about how much control the DGA will have over Jobs & Opportunity. Jobs & Opportunity is to be made up of two members: the DGA's executive director and its chief operating officer.
"The commissioners made the right decision when they rejected DGA's request to engage in federal election activity — the law prohibits it," said Paul S. Ryan, senior counsel for the nonpartisan Campaign Legal Center. "Unfortunately, the FEC failed to tell the DGA … that [it] is not permitted to simply set up a shell organization to engage in the same activity."
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