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History of Coordination Before BCRA

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Introduction

The concept of coordination first appeared in Buckley v. Valeo, and was codified in the 1976 Amendment to the Federal Election Campaign Act of 1971 (FECA). The Federal Election Commission (FEC or Commission) has promulgated many definitions of coordination prior to BCRA including the presumption of coordination theory, the conspiracy standard, and finally several amendments dealing with coordinated communications passed in 2000. All of these regulations have either been rejected by the courts or repealed by BCRA. But, in order to understand the current rules on coordination, it is useful to briefly review the history of coordination.

Discussion

I. Origins of Coordination Concept

A. Buckley v. Valeo

In 1975, several candidates for federal office, political parities, and other organizations brought an action challenging the constitutionality of FECA. These challenges were consolidated under the title Buckley v. Valeo. 1  The Buckley Court first introduced the concept of coordination in federal campaign finance rules while discussing the differences between independent expenditures and contributions. Buckley stated that when expenditures are "controlled or coordinated [the expenditures] are treated as contributions rather than expenditures under the Act." 2  The Court also noted that the Act's "contribution ceilings rather than [the] independent expenditure limitation prevent attempts to circumvent the Act through prearranged or coordinated expenditures amounting to disguised contributions." 3  The Court explained that independent expenditures are fundamentally different from coordinated expenditures because "[t]he absence of prearrangement and coordination of an expenditure with the candidate or his agent not only undermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate." 4  In sum, the Buckley Court held that coordinated expenditures are classified as contributions 5  and can be constrained by contribution limits. On the other hand, truly independent expenditures can not be limited.

B. 1976 Amendment to FECA

In response to Buckley, Congress passed major amendments to FECA in 1976. Among the amendments was a new definition of independent expenditures. 6  The Amendment defined an independent expenditure as "an expenditure by a person expressly advocating the election or defeat of a clearly identified candidate which is made without cooperation or consultation with any candidate ... and which is not made in concert with, or at the request or suggestion of, any candidate ...." 7  In the joint explanatory statement by the conference committee, the committee noted that "[t]he definition of the term independent expenditure ... is intended to be consistent with the discussion of independent political expenditures which was included in Buckley v. Valeo." 8

The FEC issued regulations to clarify and define what the "cooperation or consultation" portion of the independent expenditure definition meant. 9  The Commission stated that cooperation or consultation exists where there is "any arrangement, coordination, or direction by the candidate or his or her agent prior to the publication, distribution, display, or broadcast of the communication." 10  The regulation went on to state that such expenditures are presumed to be made when it is "based on information about the candidate's plans, projects, or needs provided to the expending person by the candidate, or by the candidate's agents, with a view toward having an expenditure made" 11  or "made by or through any person who is, or has been, authorized to raise or expend funds, who is, or has been, an officer of an authorized committee, or who is, or has been, receiving any form of compensation or reimbursement from the candidate." 12

In addition to clarifying when an expenditure is independent, the amendment also articulated a coordination concept by stating 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." 13  In the legislative history of the 1976 amendment, the conference committee explained that this coordination concept "distinguishes between independent expressions of an individual's views and the use of an individual's resources to aid a candidate in a manner indistinguishable in substance from the direct payment of cash to a candidate." 14

II. Between 1976 and 2000

A. The Presumption of Coordination Theory and the Colorado Republican Decision

Originally, the FEC "took the position that any expenditure by a political party in connection with a particular election for federal office was presumed to be coordinated with the party's candidate." 15  The FEC relied on this presumption of coordination to impose contribution limits on any expenditures made by political parties for any federal office. 16  The FEC argued that a presumption of coordination was justified because "parties and candidates are coupled so closely that all of a party's expenditures on an election campaign are coordinated with its candidate." 17

This presumption of coordination between political parties and candidates for federal office was rejected by the Supreme Court in Colorado Republican I. 18  The Court concluded "that some party expenditures could be seen as ‘independent' for constitutional purposes." 19  The decisions of Colorado Republican I and II are discussed in greater detail in Independent Spending by Political Parties.

B. The Christian Coalition Decision

In a 1999 federal action brought by the FEC, the Commission argued that "any consultation between a potential spender and a federal candidate's campaign organization about the candidate's plans, projects, or needs renders any subsequent expenditures made for the purpose of influencing the election coordinated, i.e., contributions." 20  The FEC suggested that such a standard was permissible by relying on FECA's definition of independent expenditure and the definition of expenditures that are considered contributions. 21  The district court in Christian Coalition determined that this suggested standard was too broad because although "coordination marks the constitutional dividing line between corporate contributions subject to prohibition and protected issue-oriented expenditures, that line ultimately is drawn by reference to the First Amendment, not [FECA]." 22   To illustrate how broad such a standard is, the district court stated that "[a]n insider trading or conspiracy approach ... sweeps in all attempts by corporations and unions to discuss policy matters with the candidate while these groups are contemporaneously funding communications directed at the same policy matters." 23

After announcing that the FEC's current regulation was too broad, the district court went on to describe what an appropriate definition of coordination should look like. The district court said that "First Amendment clarity demands a definition of coordination that provides the clearest possible guidance to candidates and constituents, while balancing the Government's compelling interests in preventing corruption of the electoral process with fundamental First Amendment rights to engage in political speech and political association." 24

Because the Christian Coalition case dealt with communications by corporations, such as voter guides, the district court appropriately limited its holding to "coordination as it applies to expressive coordinated expenditures by corporations." 25  Recognizing that non-communicative coordination may potentially involve different interests, the district court stated that the "interest-balancing process may well yield different results for non-expressive coordinated expenditures or for expressive coordinated expenditures by individuals." 26

In defining an appropriate regulation for coordinated communications by corporations, the district court said that a "narrowly tailored definition of expressive coordinated expenditures must focus on those expenditures that are of the type that would be made to circumvent the contribution limitations." 27  The district court agreed with the FEC that a communication made at the request or suggestion of a candidate is clearly coordinated. But, the court went on to say that in the absence of a request or suggestion, coordination exists when the candidate has control over the communication's contents, timing, location, mode or intended audience, or volume. 28  The court also said that coordination can exist where substantial negotiation or discussion between the candidate and the spender occurs about the content, timing, location, mode, or volume of the communication. 29  In explaining substantial discussion or negotiation, the court said that the contact must be such that "the candidate and spender emerge as partners or joint venturers in the expressive expenditure, but the candidate and spender need not be equal partners." 30

C. 2000 FEC Rule Making in Response to Christian Coalition

The FEC adopted new rules in 2000 to define when expenditures for general public political communications are coordinated. 31  The FEC commented that the intent of the new regulation was to "follow the standard articulated by the United States District Court for the District of Columbia in the Christian Coalition decision." 32  The new regulations were codified at 11 C.F.R. § 100.23.

Section 100.23 stated that any expenditure for general public political communication that is coordinated and includes a clearly identified candidate is both an expenditure and an in-kind contribution. 33  The FEC stated that an expenditure is coordinated when (1) it is paid for by a third party and (2) is "created, produced or distributed" under one of the following three standards: (i) request or suggestion standard, (ii) control or decision-making standard, or (iii) substantial discussion or negotiation standard. 34  All of these standards have evolved into portions of the current law on coordinated communications.

i. Request or Suggestion Standard

In the Federal Register, the FEC explained that the request or suggestion standard was implemented to track the language of 2 U.S.C. § 441a (a) (7) (B) (i) 35  and was also meant to follow the language from the Christian Coalition decision where the court said, "The fact that the candidate has requested or suggested that a spender engage in certain speech indicates that the speech is valuable to the candidate, giving such expenditures sufficient contribution-like qualities to fall within the Act's prohibition on contributions." 36

The FEC provided one hypothetical situation to help demonstrate the applicability of the request or suggestion standard. The hypothetical poses a situation where a candidate, shortly before an election, complains to a supporter that no one has publicized various problems in the personal life of his opponent. Shortly thereafter, the supporter runs a series of ads highlighting these various personal problems of the opponent. The FEC answered the hypothetical by stating that the answer turns on the precise language used, "which would be needed to determine if in fact the candidate requested or suggested that the supporter run the advertisements in question. If the candidate made no request or suggestion, the communication would not be coordinated for purposes of these rules." 37  The FEC noted that in analyzing the specific facts of such a situation, the commission "will consider both whether the requested action appears to be for the purpose of influencing a federal election and the specificity of the request or suggestion." 38

It is important to note, that the Request or Suggestion standard has evolved into the conduct standard in the FEC's new coordinated communications test.

ii. Control or Decision-Making Standard

Like the request or suggestion standard, the FEC also decided to follow the Christian Coalition definition of the control or decision-making standard. 39  The court said that even without a request or suggestion from a candidate, a communication can still be coordinated "where the candidate ... can exercise control over" the communication. 40  Control over a communication exists where the candidate has authority over the content, timing, location, mode, intended audience, volume of distribution, or frequency of placement of the communication. 41  The FEC noted this standard would also turn on the specific actions involved in each case. 42  The Control or Decision-Making Standard has now evolved into the "Material Involvement" element of the current conduct standard for coordinated communications.

iii. Substantial Discussion or Negotiation Standard

A general public political communication is also coordinated if made after "substantial discussion or negotiation between the creator, producer or distributor of the communication, or person paying for the communication, and a candidate, regarding the content, timing, location, mode, intended audience, volume of distribution or frequency of placement of that communication." 43  The FEC noted that the result of such coordination demonstrates "collaboration or agreement." 44

The text of the regulation itself declares that "substantial discussion or negotiation may be evidenced by one or more meetings, conversations or conferences regarding the value or importance of the communication for a particular election." 45   But, the FEC was quick to point out that the Commission is not concerned with the frequency of discussions or negotiations but rather with the substance of such meetings. The Commission stated that the substance of the discussion or negotiation must "go beyond protected issue discussion to specific information about how to communicate an issue in a way that is valuable or important for the campaign." 46  Thus, the Commission explained that even a brief discussion "as to how to phrase an issue, or as to which issues to emphasize, could be considered substantial." 47

Section 100.23 (d), along with the commentary from the Federal Register, makes clear that a candidate's response to an inquiry regarding the candidate's position on "legislative or public policy issues does not alone make the communication coordinated." 48

As with the first two standards, the Substantial Discussion or Negotiation Standard has evolved into one element of the new conduct standard on coordinated communications. But none of the elements of the 2000 rule actually have the force of law as such, since they have been superseded by BCRA and new rules promulgated pursuant to that Act of Congress.

Conclusion

Buckley v. Valeo first introduced the concept that certain expenditures for federal campaigns, if coordinated, can be treated as contributions under FECA. Following Buckley, Congress and the FEC have attempted to codify and promulgate regulations identifying exactly how an expenditure becomes coordinated. Thus far, the two main statutory provisions describing coordination 49  have survived judicial scrutiny. But, the major regulations dealing with coordination promulgated by the FEC have been rejected by the courts. Also, it is important to remember that the 2000 amendments dealing with coordinated communications have been totally repealed by BCRA. However, several standards from the 2000 amendments have evolved into portions of the conduct standard of the new coordinated communications test. For a detailed analysis of the new regulations on coordination, see What Counts as Coordinated Campaign Activity under Current Law?.

Notes 

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

2. Id. at 47.

3. Id.

4. Id.

5. At 2 U.S.C. § 431 (8) (2004), Congress has defined a contribution as "any gift, subscription, loan advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office; or the payment by any person of compensation for the personal services of another person which are rendered to a political committee without charge for any purpose."

6. Federal Elections Campaign Act Amendments of 1976, Pub. L. No. 94-283, 90 Stat 475 (1976).

7. 2 U.S.C. § 431 note p (1976).

8. 1976 U.S.C.C.A.N. 946, 954.

9. 11 C.F.R. 109.1.

10. 11 C.F.R. 109.1 (b) (4).

11. 11 C.F.R. 109.1 (b) (4) (A).

12. 11 C.F.R. 109.1 (b) (4) (i) (B).

13. 2 U.S.C. 441a (A) (7) (B) (i) (1976).

14. 1976 U.S.C.C.A.N. 946, 974.

15. Federal Election Commission v. Colorado Republican Federal Campaign Committee, 533 U.S. 431, 438 (2001); 11 C.F.R. § 110.7 (b) (4); See James Bopp, Jr. & Heidi K. Abegg, The Developing Constitutional Standards for Coordinated Expenditures: Has The Federal Election Commission Finally Found A Way To Regulate Issue Advocacy?, 1 Election L.J. 209, 228 (2002).

16. Federal Election Commission, 533 U.S. at 438.

17. Id. at 443.

18. Colorado Republican Federal Campaign Committee v. Federal Election Commission, 518 U.S. 604 (1996).

19. Federal Election Commission, 533 U.S. at 444.

20. Federal Election Commission v. Christian Coalition, 52 F. Supp. 2d 45, 89 (D.D.C. 1999); See James Bopp, Jr. & Heidi K. Abegg, The Developing Constitutional Standards for Coordinated Expenditures: Has The Federal Election Commission Finally Found A Way To Regulate Issue Advocacy?, 1 Election L.J. 209, 229 (2002).

21. See Supra pp. 1-2.

22. Christian Coalition, 52 F. Supp. 2d at 90.

23. Id.

24. Id. at 91.

25. Id..

26. Id.

27. Id.

28. Id. at 92.

29. Id.

30. Id.

31. 11 C.F.R. § 100.23 (2001).

32. 65 Fed. Reg. 76138 (December 6, 2000).

33. 11 C.F.R. § 100.23 (b) (2001).

34. 11 C.F.R. § 100.23 (c) (2001).

35. 2 U.S.C. § 441a (a) (7) (B) (i) (2002) says "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."

36. Federal Election Comm'n v. Christian Coalition, 52 F. Supp. 2d 45, 91 (D.D.C. 1999).

37. Id.

38. Id.

39. Id.

40. Christian Coalition, 52 F. Supp. 2d at 92.

41. Id.

42. 65 Fed. Reg. 76143 (December 6, 2000).

43. Id.

44. Id.

45. 11 C.F.R. § 100.23 (c) (iii) (2001).

46. 65 Fed. Reg. 76144 (December 6, 2000).

47. Id.

48. Id.

49. See 2 U.S.C. 441a (A) (7) (B) (i) (2004) and 2 U.S.C. § 431 (17) (2004).