"Obviously we don't agree with the commission's interpretations of the relevant law," Backer said. "My hope is that a second draft is released by some of the commissioners that properly interprets the law in support of free speech."
Lee has argued that it's only fair for politicians to be able to run a super PAC if a corporation or union can. If approved, he would use any money raised to support like-minded Republican candidates. He would be barred from spending the money on his own re-election efforts.
Backer argues that this distinction, along with an agreement that Lee wouldn't personally solicit large donations, should satisfy the FEC.
But the draft opinion says Lee's request flies in the face of the 2002 campaign finance law that expressly prohibits elected officials from being associated with a political entity that collects money beyond the legal limits. For a PAC such as the Constitutional Conservatives Fund, the limit is $5,000 per person per year and a complete ban on corporate giving.
That opinion is shared by Paul Ryan of the Campaign Legal Center, who opposes the creation of super PACs and Lee's attempt to allow politicians to directly take part in their operation. He called the request a "slam dunk" and expects the commission to vote against Backer and Lee on Thursday.
Super PACs are an outgrowth of the Supreme Court's Citizen United ruling, giving corporations and unions the ability to spend unlimited sums on political communications as long as they don't coordinate directly with candidates.
These groups played a significant role in the 2010 midterm elections and super PACs set up to support presidential candidates have already spent millions of dollars on TV ads.