This topic is monitored by Moritz Law Professor Edward B. Foley
Nader's Proverbial Bedfellows
We all know the old saying, and Ralph's Republican allies are reconfirming its truthfulness.
It's no surprise that Republicans would want to assist Nader's efforts to get on the ballot. The only questions are whether the Republican efforts are legal and, if not, what the consequences will be.
The allegation has been floated that Republican Party activities to help Nader get on the ballot, whether in Michigan or elsewhere, are unlawful contributions to the Nader campaign. An interesting issue, the resolution of which depends on the particular facts.
Whatever its motivation, the Republican Party is entitled to spend independently to support Nader's campaign. But the Republican Party cannot spend more than $5,000 in coordination with the Nader campaign in an effort to get him on the ballot. Therefore, if the Republicans spent more than $5,000 to collect signatures on behalf of Nader, a crucial question is whether the Republicans coordinated with Nader in doing so.
Coordination can be a very tricky issue under federal campaign finance laws (see here). The general definition is imprecise: coordination exists when someone spends "in cooperation with, consultation, or concert with" a candidate. Presumably, however, if Nader's campaign accepted signatures collected by the Republicans, to be submitted as part of Nader's total package of signatures to get on the ballot, then Nader would be acting in "cooperation" or "concert" with the Republicans.
Press reports have the Republicans defending against the allegation of unlawfulness on the ground that they used the Internet to gather signatures for Nader. The Internet, they claim, is exempt from the rules against coordinated campaign activities.
This defense, however, misses a key point: federal law contains two different coordination rules: one general, the other specific. The specific one concerns whether certain activities relating to the dissemination of campaign communications that support or oppose a candidate give rise to a presumption of coordination. This "coordinated communication" rule is stricter than the generic definition of communication. In other words, activities are more likely to trigger a finding of coordination if it involves a coordinated communication rather than other types of campaign activities. By contrast, the general coordination rule – the one that covers activities in "consultation" or "concert" with a candidate – operates as a kind of catch-all, a more lenient rule that applies whenever one is outside the scope of the stricter "coordinated communications" rule.
It is true that Internet activities are exempt from the specific "coordinated communications" rule. But Internet activities are not exempt from the general "consultation" or "concert" coordination rule. If Joe or Jane Millionaire said to John Kerry, "Rather than writing you a check for $100,000, let me hire a web designer to create a spiffy new web site for your campaign," that coordinated expenditure would count as a contribution to the Kerry campaign, just as would a $100,000 payment by Jane Millionaire for Kerry's travel expenses at the candidate's request. Therefore, the Republican Party does not escape the operation of the general coordination rule if, after collecting signatures over the Internet, the Party forwards them to Nader with the message, "Here's what we've been able to collect; hope they work."—and then Nader uses them to get on the ballot.
In its defense, the Republican Party is also saying that it has not spent more than $5,000 to collect signatures for Nader; instead, it has been relying on volunteers. This is a better argument, as volunteer activity even in coordination with a candidate generally does not count as a campaign contribution. But some press reports quote Republican Party officials as saying that "most" of their pro-Nader efforts have been undertaken by volunteers. One wonders then whether the "rest" of the Party's activities is enough to cross the $5,000 limit. Time (and perhaps litigation) will tell.
Even if the Republican Party has violated federal campaign finance rules by assisting Nader's efforts to get on the ballot, the question remains whether that unlawfulness has any practical consequence. Perhaps the Republican Party will be slapped with a fine. It seems extraordinarily unlikely that any of its officials would end up in jail, especially given the novelty of this particular impropriety (if, again depending on the particular facts, there has been any impropriety at all). Even so, a Republican Party operative sitting behind bars would not stop Nader from being on the ballot in the state where the Republicans were effective in collecting enough signatures for him.
The real question then is whether signatures may be disqualified if they were collected using unlawful campaign contributions. If Republican-collected signatures were stricken from Nader's list, that would have a practical effect, as in Michigan (like elsewhere) Nader reportedly has been unable to collect enough signatures on his own.
Like many legal questions, there are decent arguments to be made on both sides. On the one hand, if the signatures are themselves valid, then why should they be stricken, just because they were collected using improper campaign funds? It's the voters' rights that should be paramount in the implementation of any ballot access law, and if enough legitimate voters want Nader on the ballot (for whatever reason), then he should be there. On the other hand, signature-collection efforts must follow certain procedures, which exist for a reason. Even if valid signatures are submitted after a deadline, they are disqualified, because the deadline enforces procedural fairness. Likewise, if Nader cannot collect enough signatures except by resorting to improper means, then perhaps these tainted signatures should not count toward the number necessary to warrant a place on the ballot.
So far, our research has not disclosed any court decisions on this legal question. But we're still looking...