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

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Can Improper Coordination Be Proved By Circumstantial Evidence?

Introduction

Allegations of improper coordination between candidates and other groups are certain to arise during the 2004 presidential election, as they already have. The Kerry campaign has been accused of coordinating with advocacy organizations, like America Coming Together, MoveOn.org, and the Media Fund. These allegations are significant because the consequence of coordination is that spending by these groups to support Kerry's campaign must be treated as financial contributions to the campaign, subject to a strict limit of $5000 per group. Conversely, if the spending of these groups is not coordinated with the Kerry campaign, then the amount of spending that these groups can undertake to promote Kerry's election is unlimited.

When allegations of improper coordination arise, evidence of actual coordination is often very difficult to find. The proverbial "smoking gun" would be a memo or an exchange of e-mails describing the coordination, but such documents are often unavailable. In most instances, circumstantial evidence — such as statistical correlations of advertising purchases or a cross-over of employees — may be all that exists to suggest coordination. Indeed, in this campaign season, the allegations of improper coordination leveled against the Kerry campaign have been based on these kinds of circumstantial evidence. 1  The question, then, is whether such circumstantial evidence is enough to prove improper coordination.

Discussion

I. Brief Review of New Coordination Rules

The following discussion assumes familiarity with the FEC's newly promulgated rules regarding coordination. These rules are lengthy and complicated and are described in detail elsewhere. Very briefly, coordination exists if a group, like the Media Fund or the NRA, broadcasts campaign ads about Kerry or Bush, and the group — by hiring a former employee of the candidate's campaign — relied on insider information from the campaign to determine what, when, or where to broadcast its messages. Likewise, improper coordination exists if a group conducts a voter mobilization drive using similar inside information from the campaign. Also, improper coordination exists if the candidate has substantial discussions or involvement with the group concerning its pro-candidate advertising or get-out-the-vote efforts.

II. Examples of Possible Circumstantial Evidence of Improper Coordination

•  Statistical Relationship Between Actions of a Candidate and Another Group

Statistics may suggest that a candidate has coordinated the purchase of television advertisements with another group. Such statistics, for example, might show a near-perfect correlation between the television purchases by the candidate and the television purchases by another group. The candidate buys ads on one network's nightly news program, while the supporting groups pays for ads with essentially the same content to run on another network's nightly news program. Orchestrated purchases of this nature can be very beneficial to a candidate. If the purchases are in fact coordinated, the expenditures must be classified as contributions to the candidate. But, are statistics alone enough to prove coordination?

The FEC has not directly addressed this issue, but other areas of the law have indicated that statistics alone are not enough to prove guilt or liability. However, in some instances, statistics can be used to shift the burden of proof to the opposing side. For example, in employment discrimination cases a complaining employee must first "prove a prima facia case of discrimination in her employment." 2  Once the plaintiff proves a prima facia case, the burden of proof then shifts to the employer to disprove discrimination. 3  The Supreme Court has stated that statistics alone can be enough to prove a prima facia case, thus shifting the burden of proof. 4

Employment discrimination is a helpful analogy to improper coordination because in both instances actual evidence is often difficult to find. While the FEC does not discuss statistical evidence in its rules on coordinated communications, it is conceivable that strong statistical proof presented by a complaining group could be used to shift the burden of proof to the opposing side. It would then be the candidate's responsibility to disprove coordination.

Presumably, however, it would not be difficult for the candidate to "explain away" the apparent coordination. There may be numerous reasons that a candidate and another group are buying television ads in apparent coordination. For example, a candidate or group will likely argue that even a novice, without any coordination with a candidate, can predict which markets need the most attention. Also, it is possible that these other groups are simply relying on public statements and messages from a candidate to craft their independent communications. For example, it is not unusual for a candidate to publicly announce that he is going to engage in a certain advertising campaign during a particular week and in a specific market. Based on that information, it is not difficult for outside groups to mirror the candidate's purchasing. Also, an outside group can easily glean from a candidate's web site particular themes and markets to focus on. These examples show that even if the statistics are strong enough to shift the burden of proof, a candidate will likely have reasonable justifications for the apparent coordination. The burden would then shift back to those complaining that coordination exists to show more than just statistical evidence. For this reason, statistics alone are unlikely to be sufficient to prove improper coordination.

In addition, there are First Amendment considerations at play in this context that are not present in an employment discrimination case. To find coordination on the basis of statistics alone, where coordination did not actually occur, would intrude into a territory of First Amendment freedom: truly independent spending to support or oppose a candidate, according to the Supreme Court, is safeguarded as part of free speech. Therefore, under current law, the FEC would need to see something more than statistics to establish unlawful coordination, even if that additional evidence is difficult to obtain. Perhaps Congress could enact a new statute based on a justification that statistical correlation alone creates an unacceptable appearance of corruption, but Congress would have to document the need for this new approach, and even then it would have an uphill battle under current Supreme Court jurisprudence.

•  Evidence of Cross-over Employment with a Candidate and Another Group

Improper coordination can exist when a former employee of a campaign goes to work for an interest group and uses or conveys insider information from the campaign to the other group, information that is instrumental to the group's own advertising to support the candidate. Often, the only evidence that a transfer of instrumental information has occurred is the change of employment itself. While such circumstantial evidence may create suspicion of improper coordination, such evidence alone is also unlikely to be sufficient to prove actual coordination.

Under the new FEC's rules, the mere fact that an individual has worked for a candidate's campaign does not bar the individual from working for an interest group; nor does hiring the former employee of the candidate's campaign automatically bar the group from running its own ads to support the candidate. In other words, the fact of cross-over employment alone does not suffice to establish improper coordination. The FEC rules only prevent former employees from acting as a conduit of prior campaign information from candidates to the new employer. Therefore, additional evidence concerning the transfer of instrumental information from the campaign is necessary.

•  Statistics Plus Evidence of Cross-over Employment

Statistical evidence of coordination alone is probably not enough. Similarly, evidence that a candidate's former employee now works for a group paying for communications is not enough to prove that improper coordination exists. But, a complaining party may attempt to combine both pieces of circumstantial evidence in order to prove improper coordination. On the surface, statistical evidence and evidence of a cross-over employee seem to strengthen one another. However, such an observation fails to realize that these two pieces of evidence rely upon different theories of improper coordination. Therefore, the two types of circumstantial evidence may be unsuccessful in combining to build a case of improper coordination.

For example, in the discussion in section A (above), the statistical correlation between the purchasing of television advertisements by a candidate and another group might raise suspicion that the candidate is currently discussing, requesting, or participating in some way with the details of the communication with the other group. On the other hand, when a candidate's former employee takes a position with a group paying for a communication, a level of suspicion arises that the former employee may be using or conveying prior information learned from the candidate's campaign to assist the other group in decisions about the communication. Therefore, the fact that the former employee is in a position to share inside campaign information from six months ago (for example) adds little, if anything, to statistics showing a correlation of ad buys last week. If these ad buys were coordinated, it presumably would be through communications over the last few weeks, not based on six-month-old information.

Conclusion

The FEC's new rules on coordinated communications have yet to be tested. A key aspect of this test will be whether the rules can be effective in preventing improper coordination. To be effective, it must be possible, in some cases, to demonstrate improper coordination. If all cases of coordination are impossible to prove, the new rules are ineffectual. Conversely, the rules would not work properly if they create too many "false positives" by identifying improper coordination where none exists.

Certainly, direct evidence of improper coordination will be difficult to find. Perhaps, then, sufficient circumstantial evidence should give rise to an obligation on the part of the candidate and the allegedly coordinating group to disclose their relevant files, in case they possess e-mails or other correspondence or documents that would constitute direct evidence of coordination. But this kind of disclosure obligation, based only on circumstantial evidence, would itself raise significant First Amendment questions, considering that the disclosure would concern a group's internal deliberations about its political messages. Perhaps, then, campaign finance regulations must settle for the availability of some direct evidence before a case of improper coordination can go forward. Although direct evidence is hard to come by, perhaps the hardball world of electoral politics means that if such memos or e-mails exist, political opponents have every incentive to discover them, and such evidence has a way of surfacing.

Notes

1. FEC action filed by the Republican National Committee and the Bush/Cheney campaign.   http://www.gop.com/media/SoftMoneyComplaint.pdf, p. 65 (March 31, 2004).

2. Hill v. Lockheed Martin Logistics Management, Inc., 314 F.3d 657, 663 (4th Cir. 2003).

3. See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

4. See Hazelwood School Dist. V. U.S., 433 U.S. 299, 307-08 (1977).