There’s an old saying I learned in law school. It went something like this:

When the law is on your side, pound on the law. 

When the facts are on your side, pound on the facts. 

And when neither the law nor the facts are on your side, pound on the table.

I thought of that saying Wednesday after I saw that the Federal Election Commission has a draft advisory opinion that suggests Google could make to make some changes to Gmail and spam, despite the fact that hundreds or even thousands of Gmail users have objected.

Here’s the background. Last month, Google asked the FEC for an advisory opinion on whether it could “launch a pilot program” to allow some political emails to be exempted from “forms of spam detection to which they would otherwise be subject.”

Instead, messages from some FEC-registered political committees would be routed into Gmail users’ inboxes, and users would then have to manually signal that they wanted future political messages from those senders to be routed to spam.

Also, Google would provide data to the political candidates and committees about how many of their emails wind up in people’s Gmail inboxes, as opposed to going to spam.

Why does Google want or need the FEC’s blessing? Let’s set the context:

  • Back in April, some Republican politicians complained to the FEC that Google was sending Republican fundraising emails to spam at a higher rate than Democratic emails. The disparity, the Republicans complained, was the equivalent of “illegal, corporate in-kind contributions” to Democrats.  
  • In response, Google CEO Sundar Pichai flew to Washington in June, and pitched top Republicans on the no-spam-for-all idea. 
  • But now, Google had a new problem: ensuring that if it did try this change, the government would not later claim that that new plan amounted to illegal corporate campaign contributions.

The irony — although this is just my conjecture — is that Google might rather not be doing any of this, except that the company’s hand was forced by the Republicans who complained.

Anyway, just over 2,500 people have submitted comments so far to the FEC (the deadline to comment on the draft opinion is now August 11). The overwhelming majority said they were against the idea. 

But, I noticed something in reading many of these objects: 

It’s that while most of those who commented said they didn’t want political spam in their inboxes, most also didn’t address why they thought the FEC should characterize the no-spam treatment as an in-kind campaign contribution.

This seemed like a big deal because the FEC’s job is to enforce campaign finance laws; not to regulate email.

That in turn made me wonder whether the objections would have any bearing at all on what the FEC would do in the end — or whether it was the equivalent, as we used to say, of pounding on the table.

Sure enough, looking at the draft opinion by the FEC’s general counsel, two things were evident:

  • First, there’s no mention in the draft opinion of any of the objections.
  • Second, the draft opinion, if adopted, would answer the question about Google’s plans very clearly:

“Yes, Google may offer the proposed pilot program to Eligible Participants because Google would offer the program at the usual and normal charge and in the ordinary course of its business.”

Now, we should be clear that this isn’t a done deal just yet. The draft opinion is just that — a draft — and it’s difficult to predict what the six FEC commissioners who have to vote on it will do.

“It’s possible that they discuss it and they split; it could be a 3 to 3 vote, and no opinion gets issued,” said Bill Powers, a partner in the law firm Nossaman LLP in Washington, who previously worked as assistant general counsel for enforcement at the FEC. “Or they could have their discussion, and it appears they find common ground, and they instruct the office of general counsel to draft something along the lines of the discussion. We don’t know what will happen.”

The next step: More public comments and a public meeting on August 11. The FEC has already set up a YouTube link to watch the proceedings that day, so I’ll include the link below. 

The bottom line is that while nothing is final until it’s final, if you’re Google, and you actually want to go ahead with this new idea, you’d have to feel pretty good about where things stand.

“[T]hings do change,” Powers said, “but it’s better [for Google] than having a negative draft.” 

Here’s the link to the YouTube video where people should be able to see the FEC meeting on August 11:

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