NYT:

Lawyers for the Federal Election Commission have concluded that some of the aggressive fund-raising tactics commonly used this campaign season by the candidates and “super PACs” should not be allowed under federal law, setting up what promises to be a heated debate Thursday on the issue between Democratic and Republican commissioners.

In the draft of a legal opinion made public on Wednesday, the F.E.C. lawyersconcluded that politicians can be bound by fund-raising restrictions even if they insist they have not decided whether to run and were simply “testing the waters” for a possible campaign. A politician cannot get around those restrictions simply by using a super PAC or another organization as a proxy to raise money, the lawyers concluded….

The F.E.C. lawyers assessed the legality of a dozen campaign fund-raising scenarios in response to a request made in September by Democratic campaign lawyers. The request was a gambit by the Democrats that could serve to force the commission either to block some of the aggressive tactics used by Republican super PACs or to give Democrats legal blessing to do the same things without legal jeopardy.

The election commissioners — three Democrats and three Republicans — will consider the lawyers’ draft findings on Thursday morning. Based on past votes, the commission is likely to split, 3-3, on whether to adopt the findings, with Democrats backing tougher restrictions and Republicans opposing them.

Campaign lawyers say that the expected split vote would have the effect of giving campaigns and super PACs a green light to use some of the more controversial tactics in the absence of any ban by the commission.

I’m old enough to remember when it took 4 votes, not 3, on the commission to create a safe harbor.