The defense will rest, on this key point: in my view, Marty is mistaken, as
a matter of fact, in stating that

"Note, however, that of all of these questions, the only ones that the FEC
is purporting to answer in the ABC proceeding are the two "What are the
permissible uses of the money?" questions in Nos. 5 and 6.  The answers to
those questions might, in turn -- intentionally or not, fortunately or
unfortunately, perhaps unnecessarily -- implicate some of the other
questions that I've identified (and about which the commenters in the ABC
proceeding have expressed concerns); but that's not what the FEC is
purporting to do."

This is not a correct statement of what the FEC is purporting to do. It is
not clear that the FEC is united on its mission here at all. Commissioner
Toner, for one, has publicly stated that the FEC should be concerned with
the "soft money" activities of both 527s and 501cs. In both cases, as he
sees them, the Commission should consider aggressively and clearly
restricting the use of soft money with the purpose or effect of influencing
elections-such as its use in communications critical of federal candidates.
This is why it is unrealistic to separate and treat as somehow unrelated the
"expenditure" theory advanced against political committees and a revival of
attention to the "major purpose" test.  For this reason, it is also
unrealistic to treat as unrelated  the pending AO requests and the pending
rulemaking. Marty's analysis of the ambiguities of the law, and his response
to the hypo, only underscore the peril faced by 501cs.

In the words of the well-traveled horror film trailer, the tax exempt
community has every reason to be afraid--very afraid. That is why over 300
of them have expressed their deep concern in comments to the FEC.

In any event, Marty has offered a carefully thought out view of the law and
how it might develop, and I have found it very helpful.