Keep your eye on the American Future Fund request for an advisory opinion on the FEC’s agenda for Thursday. The general counsel has put forward two drafts, Drafts A and B, which is usually an indication of a split on the commission.  In this case, Draft A would read the requirement of a reference to a “clearly identified candidate” really, really narrowly.  How narrowly?  Under this draft a group could use an audio clip of the president’s voice, and criticize that voice making the statement—and it still would not count as an election ad for disclosure purposes because of the lack of a “clearly identified candidate.”

The Obama campaign is incredulous and I can’t say I blame them.  Of course Draft A won’t be adopted because none of the Democratic commissioners would vote for it.  But to deadlock on what “clearly identified candidate” means and then not to issue an advisory opinion gives some plausible deniability to someone who would argue that such an ad does not require disclosure.

Let’s hope it doesn’t come to this.

UPDATE: Bloomberg BNA offers Drafts Hint FEC May Deadlock Over AO On Disclosure of Conservative Group’s Ads.