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This topic is monitored by Moritz Law Professor Edward B. Foley

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What Counts as Coordinated Campaign Activity Under Current Law?

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Introduction

"Coordination" is the term used to describe the interaction between candidates and others — like political parties, PACs, and interest groups — that causes activities undertaken by these groups to be regulated as financial contributions to the campaign. All groups making financial contributions to a federal candidate's campaign are subject to limits on the amount of funds they can contribute (although this amount differs depending on whether the group is a political party, a PAC, or an interest group organized as an unincorporated association of individuals 1), and all such contributions are subject to disclosure requirements. When a group's expenditures to support a candidate's election are not coordinated with a candidate's campaign, however, those expenditures are deemed independent and are not regulated in the same way contributions, including coordinated expenditures, are. 2  In particular, the Supreme Court has foreclosed the imposition of any limits on the amount of money individuals or groups may spend for independent expenditures. Consequently, it matters greatly whether a group's activities on behalf of a federal candidate are considered coordinated or independent.

Efforts to define the term "coordination," and thus draw a precise line between coordinated and uncoordinated conduct, have proven difficult since the term was first articulated by the U.S. Supreme Court in the landmark case Buckley v. Valeo . 3  This history is discussed elsewhere. Here, the focus is on new coordination rules adopted by the Federal Election Commission on January 3, 2003, pursuant to the Bipartisan Campaign Reform Act of 2002 (BCRA) (often called "McCain-Feingold" after its primary sponsors in the Senate).

Brief Summary

Although there are many details to the new FEC coordination rules, they contain some basic features that can be summarized quickly. First, there is a general coordination rule that applies to various forms of spending, including the payment of the candidate's travel expenses, and a specific coordination rule that addresses only spending on publicly disseminated communications that support the candidate's election. Consequently, with respect to activities likely to occur during the 2004 presidential election, get-out-the-vote efforts (such as driving voters to the polls) will be governed by the general coordination rules, whereas broadcast advertising is covered by the specific rule on coordinated communications.

This specific rule, in turn, has two components: (1) a content standard; and (2) a conduct standard. The content standard defines the categories of communications that are covered by the specific rule. Any communications that fall outside this content standard are, by default, covered by the general coordination rule. The specific rule is stricter than the general rule, more likely to result in a finding of coordination. Thus, the content standard has the effect of subjecting some kinds of communications to a more rigorous coordination standard than other communications, based on the premise that coordination is more likely to occur with respect to the former than the latter.

The conduct standard identifies several categories of conduct that result in a finding of coordination. Essentially, it is an effort to specify what it means to engage in coordination. Thus, "material involvement" of the candidate in the decision of an interest group to pay for broadcast ads supporting the candidate counts as coordination, as does "substantial discussion" between the candidate and the group that sponsors the ads. The conduct standard also addresses the situation in which the candidate and group coordinate by sharing the same advertising agency or by an employee of the candidate's campaign switching jobs to work for the interest group. The conduct standard does not, however, make a finding of coordination automatic just because there is a shared advertising agency or cross-over employee; instead, inside information from the candidate's campaign must be transmitted through this conduit and used by the interest group to develop its pro-candidate communications.

The Details of the New Coordination Rules

I. The General Coordination Rule

In the wake of the Bipartisan Campaign Reform Act of 2002 (BCRA), the Federal Election Commission (FEC) defines coordination as expenditures "made in cooperation, consultation or concert with, or at the request or suggestion of, a candidate, a candidate's authorized committee, or their agents, or a political party committee or its agents." 4  The FEC has derived this definition of coordination from the Federal Election Campaign Act (FECA), which provides (in essentially the same language) that "expenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents, shall be considered to be a contribution to such candidate." 5

This general definition of coordination applies to all forms of spending except "coordinated communications": "Any expenditure that is coordinated ... but that is not made for a coordinated communication ... is either an in-kind contribution to, or a coordinated party expenditure with respect to, the candidate." 6  The way to determine whether an expenditure is coordinated under this rule is to assess whether it was undertaken "in cooperation, consultation, or concert with, or at the request or suggestion of, a candidate." This generic standard applies whenever an individual or group pays for the operating expenses of a candidate's campaign, such as hotel or airfare expenses.

II. Coordinated Communications

In BCRA, Congress stated that the FEC must promulgate new regulations for coordinated communications. 7  Congress also provided that the new regulations need not require agreement or formal collaboration to establish coordination. 8  Congress gave FEC discretion to address any issues that the FEC deemed necessary, but stated that the FEC must address

  1. payments for the republication of campaign materials;
  2. payments for the use of a common vendor;
  3. payments for communications directed or made by persons who previously served as an employee of a candidate or a political party; and
  4. payments for communications made by a person after substantial discussion about the communication with a candidate or a political party. 9

The FEC has complied with BCRA by promulgating new regulations on coordinated communication at 11 C.F.R. §109.21.

The new regulations state that communications paid for by persons other than the candidate are coordinated with a candidate when the communication satisfies both a content and a conduct standard. 10

A. Content Standard

There are four different ways to satisfy the content standard, and usually there will not be much question whether a communication fits into any of these four categories or not. Consequently, the content standard is fairly straightforward to apply and is often met when a group is speaking publicly about a candidate. The content standard merely serves as a "filter or a threshold that screens out certain communications from even being subjected to analysis under the conduct standards." 11

1-Electioneering Communication. Any communication that qualifies as an electioneering communication under 11 C.F.R. §100.29 satisfies the content standard. 12 An electioneering communication is

Any broadcast, cable, or satellite communication that:

(1) Refers to a clearly identified candidate for Federal office;

(2) Is publicly distributed within 60 days before a general election for the office sought by the candidate; or within 30 days before a primary or preference election, or a convention or caucus of a political party that has authority to nominate a candidate, for the office sought by the candidate, and the candidate referenced is seeking the nomination of that political party; and

(3) Is targeted to the relevant electorate, in the case of a candidate for Senate or the House of Representatives. 13

For the presidential election, an "electioneering communication" is any broadcast advertisement that mentions the name, or includes a picture, of either President Bush or Senator Kerry, within a month of the national conventions this summer. Thus, virtually all broadcast ads about either candidate for the remainder of the campaign will be covered.

2-Republication of the Candidate's Own Campaign Materials. "A public communication that disseminates, distributes, or republishes, in whole or in part, campaign materials prepared by a candidate" satisfies the content standard. 14  A public communication is defined as " a communication by means of any broadcast, cable or satellite communication, newspaper, magazine, outdoor advertising facility, mass mailing or telephone bank to the general public, or any other form of general public political advertising." 15  But, the term public communication expressly excludes communications over the Internet. 16

3-Express Advocacy. "A public communication that expressly advocates the election or defeat of a clearly identified candidate for Federal office" satisfies the content standard. 17  The "express advocacy" standard is a longstanding one in campaign finance law and includes messages like "Vote for Smith" or "Defeat Jones". 18

4-Additional Content Standard. When "[a] communication that is a public communication" and each of the following are true, the content standard is satisfied: "

  1. The communication refers to a political party or to a clearly identified candidate for Federal office;
  2. The public communication is publicly distributed or otherwise publicly disseminated 120 days or fewer" before a primary or general election; and
  3. "The public communication is directed to voters in the jurisdiction of the clearly identified candidate ... ." 19

The language of this content standard extends the category of electioneering communication in two ways: first, it extends the covered time period to 120 days before the election; and second, it applies to more forms of media than just the category of electioneering communication, which is limited to broadcasting. Again, however, this extension does not encompass the internet. 20

• It is also important to note that this fourth content standard "does not require a description of a candidate's views or positions." 21  Merely mentioning or depicting the candidate suffices.

B. Conduct Standard

Because the content standard is straightforward and is often met, the conduct standard is the critical element of the coordinated communication test.

Any of the following types of conduct, "whether or not there is agreement or formal collaboration," 22  satisfies the conduct standard:

1-Request or suggestion. The request or suggestion element of the conduct standard is satisfied if the communication "is created, produced, or distributed at the request or suggestion of a candidate," or the communication "is created, produced, or distributed at the suggestion of a person paying for the communication and the candidate ... assents to the suggestion." 23  The FEC pointed out that this element of the conduct standard is "derived from the Supreme Court's Buckley decision and has existed in the Commission's regulations without further definition for over two decades." 24

The request or suggestion element is the most obvious form of coordination found in the conduct standard. 25  But, in order to determine if a request or suggestion has been made, the FEC suggests that a case-by-case analysis is required. Moreover, there is no presumption of coordination. 26  The FEC has also indicated that the request or suggestion element is "intended to cover requests or suggestions made to a select audience, but not those offered to the public generally." 27  To illustrate this point, the FEC offered the following hypothetical situations:

A request that is posted on a web page that is available to the general public is a request to the general public and does not trigger the [request or suggestion standard], but a request posted through an intranet service or sent via electronic mail directly to a discrete group of recipients constitutes a request to a select audience and thereby satisfies the [request or suggestion standard]. Similarly, a request in a public campaign speech or a newspaper advertisement is a request to the general public and is not covered, but a request during a speech to an audience at an invitation-only dinner or during a membership organization function is a request to a select audience and thereby satisfies the [request or suggestion standard]. 28

The request or suggestion standard can also be satisfied if a candidate assents to a request or suggestion made by the person or group paying for the communication. The FEC indicated that the primary purpose of this alternative for the request or suggestion element was "to prevent circumvention of the statutory request or suggestion test ... by, for example, the expedient of implicit understandings without a formal request or suggestion." 29  The FEC noted that assent simply means "an expression of a desire to some person for something to be granted or done." 30  While assent may take many forms, the FEC remarked that a fact-based analysis will be necessary for each situation. 31

2-Material Involvement. The material involvement element of the conduct standard is satisfied if the "candidate ... is materially involved in the decisions regarding" the content, the intended audience, the means or mode, the duration, the specific media outlet used, the timing or frequency, or the size or prominence of the communication. 32  The FEC has remarked that the material involvement element covers communications via broadcast and print media, mass mailings, telephone banks, and also the script of telephone calls. 33  The term material is meant to convey the ordinary legal meaning of "important; more or less necessary; having influence or effect; going to the merits." 34  The FEC has also indicated that the term "materially involved in decisions" only encompasses interactions "that are important to the communication" itself and thus excludes "incidental participation that is not important to, or does not influence, decisions regarding a communication." 35

Also, the material involvement element does not require a direct causation or "but-for" test, but "focuses instead on the nature of the information conveyed and its importance, degree of necessity, influence or the effect of involvement by the candidate." 36  The candidate "need not be present or included during formal decision making process but need only participate to the extent that he or she assists the ultimate decision maker." 37

The FEC provides a useful example to clarify how the material involvement element is to be applied. The gist of this example is that a fax sent by the candidate to an interest group describes the times when the candidate will purchase campaign advertising on ABC and NBC; the interest group then uses this fax to run the same ads on CBS during the same time slots. 38  The Commission views the transmission of the fax, together with the correlation of the ad buys, as satisfying the "material involvement" requirement.

The "material involvement" element of the conduct standard is broader than the "substantial discussion" element (as described next). Just like sending a fax without any discussion can give rise to "material involvement," so too can sending a messenger to deliver the candidate's polling data to an interest group, with the expectation — and result — that the interest group uses this polling data to decide what audience to target with its broadcasts. 39

3-Substantial Discussion. The substantial discussion element of the conduct standard is satisfied if the communication "is created, produced, or distributed after one or more substantial discussions about the communication between the person paying for the communication ... and the candidate who is clearly identified in the communication ... or his or her opponent." 40  The FEC has indicated that a discussion is substantial if "information about the candidate's or political party committee's campaign plans, projects, activities, or needs is conveyed to a person paying for the communication, and that information is material to the creation, production, or distribution of the communication." 41  The FEC has defined "discuss" as meaning "an interactive exchange of views or information." 42  The term "material" has the same definition as discussed in the material involvement section above.

It is important to recognize that the substantial discussion standard is triggered only when the candidate engages in substantial discussion with a group about the communication itself (either its message or its dissemination). The substantial discussion element is not met where the candidate and the other group engage only in substantial discussions about the candidate's plans and needs. The discussion must go beyond the candidate's needs and delve into substantial discussion specifically about the communication.

In addition to the requirement from BCRA to include a substantial discussion element, the FEC stated that the purpose of the substantial discussion element was to "provid[e] an analytical framework in which a finder of fact determines whether a discussion occurred, whether certain information was conveyed, and whether that information is material to the creation, production, or distribution of the communication." 43

4-Common Vendor. The common vendor element of the conduct standard is satisfied if

The person paying for the communication ... contracts with or employs a commercial vendor[ 44] ... to create, produce, or distribute the communication;

That commercial vendor ... has provided any of the following services to the candidate who is clearly identified in the communication ... or his or her opponent ... in the current election cycle[ 45]:

  1. Development of media strategy, including the selection or purchasing of advertising slots;
  2. Selection of audiences;
  3. Polling;
  4. Fundraising;
  5. Developing the content of a public communication;
  6. Producing a public communication;
  7. Identifying voters or developing voter lists, mailing lists, or donor lists;
  8. Selecting personnel, contractors, or subcontractors; or
  9. Consulting or otherwise providing political or media advice; and

That commercial vendor uses or conveys to the person paying for the communication [material information about the candidate's campaign]. 46

The last clause of this provision - (iii) - is the critical one because it limits the applicability of the provision to those situations in which the hired media consultant shares information about the candidate's media plans with the outside group. The FEC has stated that the common vendor element does not create a presumption of coordination whenever a candidate shares the same vendor as the other group. Instead, the rule covers only those situations in which the common vendor acts as a conduit of inside information from the candidate's campaign and transmits that information in a way that becomes useful to the interest groups that engage in spending in support of the candidate.

5-Former Employee or Independent Contractor. The former employee or independent contractor element of the conduct standard is satisfied when the communication "is paid for by a person, or by the employer of a person, who was an employee or independent contractor of the candidate who is clearly identified in the communication, ...during the current election cycle" and "that former employee or independent contractor uses or conveys to the person paying for the communication" material information about the candidate's campaign. 47

The FEC was required by BCRA to include the former employee element. The FEC has interpreted the intent of the former employee element "to encompass situations in which former employees, who by virtue of their former employment have been in a position to acquire information about the plans, projects, activities, or needs of the candidate's campaign ... may subsequently use that information or convey it to a person paying for a communication." 48  The only concern is whether the information is material to the communication, not whether the information was material to the services previously provided to the candidate. 49

This primary concern focuses on situations "in which a former employee of a candidate goes to work for a third party that pays for a communication that promotes or supports the former employer/candidate or attacks or opposes the former employer/candidate's opponent." 50  This element does not require a showing that the former employee is acting under the "behest of, or on behalf of" his former boss. 51  The former employee element does not include those who were volunteers for the candidate. 52

6-Dissemination, Distribution, or Republication of Campaign Material. Mere dissemination, distribution, or republication of a candidate's campaign material is not enough to satisfy the conduct standard. This is true even though such reproduction of campaign materials satisfies the content requirement. The key point here is that, for coordination to exist, the candidate must be involved in the decision to reproduce the campaign materials.

The FEC provided an example to help illustrate this point:

If a candidate requests or suggests that a supporter pay for the republication of a campaign ad, the resulting communication paid for by the supporter satisfies both a content standard (republication) and conduct standard (request or suggestion), and is therefore a coordinated communication. However, without that request or suggestion, and assuming no other contacts with the candidate ... the communication does not satisfy the 'request or suggestion' conduct standard and is not a coordinated communication even though it contains campaign material prepared by the candidate. 53

Conclusion

If both the content and conduct standards are satisfied, expenditures paid for by the group will be classified as a contribution to the candidate and will be limited by laws governing contributions. However, an important question not addressed explicitly by the FEC is who bears the burden of proof in a case when coordination is alleged. Although the FEC has not addressed the issue, presumably the complaining party will bear such a burden. In any event, the party bearing the burden of proof may have a very difficult time proving that the conduct standard is, or is not, satisfied. Evidence needed to prove the conduct standard may be hard to come by, as such interactions will normally be behind closed doors and extremely confidential. Alternatively, if the burden of proof rests with the candidate or the other group, disproving the conduct standard may also be very difficult.

This burden of proof issue will need to be addressed during the upcoming presidential election, as questions of coordination are certain to appear. Already the Republican National Committee and the Bush/Cheney campaign have accused the Kerry campaign of improperly coordinating communications with groups like the Media Fund and MoveOn.org. For a discussion of how the FEC's new coordination rules apply to such allegations, see Can Improper Coordination Be Proved by Circumstantial Evidence?.

Notes

1. Corporations may not make contributions to a federal candidate's campaign. See FEC v. Beaumont, 123 U.S. 2200 (2003).

2. In some instances, independent spending is subject to some forms of regulation, but for ease of understanding this memo proceeds on the assumption that spending will not be regulated unless it is considered coordinated, as is true in most instances.

3. Buckley v. Valeo, 424 U.S. 1 (1976).

4. 11 C.F.R. §109.20(a) (2004).

5. 2 U.S.C. §441a (a)(7)(B)(i) (2004).

6. 11 C.F.R. §109.20(b) (2004).

7. Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, §214(c), 116 Stat. 81 (2002).

8. Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, §214(c), 116 Stat. 81 (2002 Id).

9. Id.

10. 11 C.F.R. §109.21 (a)(1)-(3) (2004).

11. Id.

12. 11 C.F.R. §109.21 (c)(1) (2004).

13. 11 C.F.R. §100.29 (2004).

14. 11 C.F.R. §109.21 (c)(2) (2004).

15. 11 C.F.R. §100.26 (2004).

16. 11 C.F.R. §100.26 (2004). Id.

17. 11 C.F.R. §109 ; Buckley v. Valeo, 424 U.S. 1 (1976). 21 (c)(3) (2004).

18. For further information on the express advocacy standard, see Edward B. Foley, "Smith for Congress" and Its Equivalents: An Endorsement Test under Buckley and MCFL, 2 Election Law Journal 3 (2003).

19. 11 C.F.R. §109.21 (c)(4) (2004) (emphasis added).

20. Rules and Regulations, 68 Fed. Reg. 4289 (Jan. 03, 2003).

21. Id. at 430.

22. 11 C.F.R. §109.21 (d) (2004).

23. 11 C.F.R. §109.21 (d)(1)(i)-(ii) (2004).

24. Rules and Regulations, 68 Fed. Reg. 431 (Jan. 03, 2003).

25. Id. at 432.

26. Id.

27. Id.

28. Id. at 432.

29. Id.

30. Id.

31. Id.

32. 11 C.F.R. §109.21 (d)(2)(i)-(vi) (2004).

33. Id. at 433.

34. Id. (quoting Black's Law Dict Law Dict . (6th ed. 1990) p. 976).

35. Id. at 433.

36. Id.

37. Id.

38. Id. at 434.

39. Id.

40. 11 C.F.R. §109.21 (3) (2004).

41. Id.

42. Id. at 435.

43. Id.

44. Commercial vendor is defined as "any persons providing goods or services to a candidate or political committee whose usual and normal business involves the sale, rental, lease, or provision of those goods or services." 11 C.F.R. §116.1(c) (2004).

45. Election cycle is defined as "An election cycle shall begin beginning" on the first day following the date of the previous general election for the office or seat which the candidate seeks, unless contributions or expenditures are designated for another election cycle. For an individual who receives contributions or makes expenditures designated for another election cycle, the election cycle shall begin at the time such individual, or any other person acting on the individual's behalf, first receives contributions or makes expenditures in connection with the designated election. The election cycle shall end on the date on which the general election for the office or seat that the individual seeks is held." 11 C.F.R. §100.3 (2004).

46. 11 C.F.R. §109.21 (d)(4) (2004) (emphasis added).

47. 11 C.F.R. §109.21 (d)(5) (2004).

48. Rules and Regulations, 68 Fed. Reg. 438 (Jan. 03, 2003).

49. Id.

50. Id.

51. Id. at 439.

52. Id.

53. Id.