I have now had a chance to give an initial read through the FEC General Counsel’s draft proposed rulemaking which will be considered initially by the FEC on Thursday. The FEC’s decision on Thursday won’t mean much; right now all we are talking about is an initial publication of the proposed rules with an invitation for comments. The real action will come when the FEC holds its April hearings and issues its final rules, scheduled for May.
It may be that there is no majority on the FEC to agree on the appropriate rules. It is certainly possible that the FEC could deadlock 3-3 on some or most of these issues. But it is also possible that a majority will craft some sort of compromise.
The draft raises literally dozens of questions for comment, but perhaps the most important one appears on page 6:

[T]he Commission seeks comment on whether the effective date of any final rules that the Commission may adopt should be delayed until after the next general election and whether there is a legal basis for delaying the effective date. The Commission also seeks comment on whether changing the definition of basic terms such as “political committee,” “expenditure,” and “contribution,” in the middle of an election year would cause undue disruption to the regulated community.

There is much to be said for not changing election rules in the middle of an election year. This was a concern advanced while the Supreme Court considered the constitutionality of the McCain-Feingold law in the McConnell case. It was seen as important that the Court act before the “electioneering communications” provisions of BCRA kicked into place, and the Court did act before that deadline.
If the FEC acts and changes the rules of the game in June, there is potential for serious disruption. But I would predict that if the FEC acts, the rules could change yet again in this election season, because the FEC’s rules could themselves be struck down as unconstitutional if challenged in court. As I have discussed here and on the blog, there are serious constitutional questions raised by treating 527s that make only independent expenditures as political committees and therefore subject to the FECA’s $5,000 individual contribution limit.
These challenges would all have to take place right during the period when the 527 organizations want to engage in the activity, so everything would have to be on an expedited schedule.
It may be that a majority of commissioners believe that it is important enough on policy grounds that 527 organizations be regulated this election cycle. But in considering the balance with disruption, they should also consider the serious possibility that whatever change they make could become subject to immediate challenge and engender great uncertainty.