This topic is monitored by Moritz Law Professor Edward B. Foley
McConnell and Coordination
In McConnell v. FEC 1, the Supreme Court makes clear that (1) coordination with respect to spending for activities other than express advocacy is permissible and (2) agreement is not required for a finding of coordination; the Court also (3) left for another day its review of the new FEC rules on coordinated communications, and (4) invalidated the forced choice provision of the McCain-Feingold reforms.
Background of McConnell v. FEC
On March 27, 2002, the President signed into law the Bipartisan Campaign Reform Act of 2002 (BCRA or "McCain-Feingold"), which contains a series of amendments to the Federal Election Campaign Act of 1971 (FECA). Shortly after President Bush signed BCRA into law, Senator Mitch McConnell filed suit in the U.S. District Court for the District of Columbia against the Federal Election Commission (FEC). Multiple actions challenging the BCRA were brought by more than 80 plaintiffs and were consolidated into one lead case, McConnell v. FEC. The complaint argued that portions of BCRA violate the First and Fifth Amendments to the Constitution.
The United States District Court for the District of Columbia upheld portions of the Act and struck others as unconstitutional. As a result, the parties involved appealed to the Supreme Court.
I. BCRA § 202's Treatment of Coordinated Communications as Contributions Is Constitutional.
Section 202 of BCRA amends FECA § 315 (a) (7) (C) by stating that disbursements for "electioneering communications that are coordinated with a candidate or party will be treated as contributions to, and expenditures by, that candidate or party." 2 This provision extends the longstanding concept of coordination to the new category of "electioneering communication" created by BCRA. Section 202 of BCRA reiterates the FECA's basic definition of coordination, by stating that "expenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of a candidate or party will constitute contributions." 3 But past federal campaign cases, like Buckley, interpreted the word "expenditure" as covering only spending for express advocacy (for example, "Vote for Smith," "Defeat Jones"). The BCRA-created category of "electioneering communications" is significantly broader than "express advocacy," encompassing any broadcast references to a candidate within 60 days of an election, or 30 days of a primary when targeted to the relevant electorate. Given this difference, it was disputed whether coordinated payments for campaign ads that were not express advocacy would be treated as contributions — and whether it was constitutionally permissible to do so.
In McConnell, the Court determined that Section 202 of BCRA "pre-empts a possible claim that § 315(a) (7) (B) is similarly limited, such that coordinated expenditures for communications that avoid express advocacy cannot counted as contributions." 4 The Court explained that the Buckley definition of expenditure does not create a constitutional limitation on Congress' authority to regulate federal campaign finance issues. 5 The Court thus concluded that "there is no reason why Congress may not treat coordinated disbursements for electioneering communications in the same way it treats all other coordinated expenditures." 6
The Court affirmed the District Court's finding that the plaintiffs had not advanced a valid basis for finding § 202 of BCRA unconstitutional. 7
II. § 214 of the BCRA, Allowing a Finding of Coordination Even Without Agreement or Formal Collaboration, Is Constitutional.
Sections 214 (b) and (c) of BCRA direct the FEC to repeal its current regulations and to promulgate new regulations dealing with "coordinated communications" paid for by persons other than candidates or their parties. 8 Section 214 (c) instructs the FEC that the new regulations "shall not require agreement or formal collaboration to establish coordination." 9 The plaintiffs argued that the BCRA guidelines and the new regulations by the FEC are overly broad and unconstitutionally vague because "they permit a finding of coordination even in the absence of an agreement." 10 The plaintiffs suggested that because criminal sanctions are attached to these laws, a clear definition of coordination is required. The complaint suggested that any definition of coordination that does not require the presence of agreement cannot provide the "precise guidance that the First Amendment demands." 11
The Court determined that actual agreement is not required by saying "[w]e are not persuaded that the presence of an agreement marks the dividing line between expenditures that are coordinated — and therefore may be regulated as indirect contributions — and expenditures that truly are independent." 12
The Court explained that expenditures made "after a wink or nod" or at the "request or suggestion" of a candidate are just as useful to the candidate as expenditures in conjunction with formal agreements. 13 The impact on the candidate or campaign by informal coordination can be as influential as the impact of formal coordination. The functional consequences of different types of expenditures is what is meant to be regulated, not the formality of the agreement. 14
In conclusion, the Court stated "we cannot agree with the submission that [BCRA § 214] is overbroad because it permits a finding of coordination or cooperation notwithstanding the absence of a pre-existing agreement." 15 The Court also announced that the new law is not unconstitutionally vague because the "FECA's definition of coordination gives fair notice to whom it is directed." 16
III. Challenge Against the Rules Promulgated by the FEC Are Rejected Because the Issues Were Not Appropriately Raised in the Facial Challenge to BCRA.
The plaintiffs also attempted to challenge the content and conduct standards for coordinated communications promulgated by the FEC at 11 CFR § 109.21 (2003). As instructed by BCRA, the FEC created rules for determining when a communication is coordinated. At § 109.21 a communication that is paid for by a person other than a candidate is coordinated with a candidate when it (1) satisfies at least one of the content standards and (2) satisfies at least one of the conduct standards. The current rules on coordinated communications are discussed in detail in What Counts as Coordinated Campaign Activity under Current Law?
The Court quickly dismissed these challenges because the "issues concerning the regulations are not appropriately raised in this facial challenge to BCRA, but must be pursued in a separate proceeding" and that the "plaintiffs' challenge to § 214 (b) and (c) is not ripe to the extent that the alleged constitutional infirmities are found in the implementing regulations rather than the statute itself." 17 Therefore, we will have to wait for another occasion to know whether the new FEC rules are consistent with the First Amendment.
IV. BCRA's § 213 Requirement that Political Parties Choose Between Coordinated and Independent Expenditures After Nominating a Candidate Is Unconstitutional.
Section 213 of BCRA, amending FECA § 315(d) (4), contains a rule known as the "forced choice" provision. It requires political parties to choose between independent expenditures or coordinated expenditures on behalf of candidates, prohibiting parties from doing both. Basically, under this provision, after a party makes an independent expenditure, it is barred from making any coordinated expenditures. Likewise, after a party makes coordinated expenditures with a candidate, it is barred from making any independent expenditures. 18
The Court concluded that this portion of the BCRA is unconstitutional because the law, in some circumstances, prohibits independent expenditures and because the government was unable to demonstrate a meaningful governmental interest to justify regulating independent expenditures. 19 The Court has made clear that groups and individuals have an unconditional right to make as much independent expenditures as they desire. This forced-choice provision would impermissibly curtail independent expenditures.
After McConnell, coordinated communications can be treated the same as contributions, and coordination can exist even without a showing of formal agreement or collaboration. The Court determined that Congress can not require a political party to choose between coordinated expenditures or independent expenditures after nominating a candidate for a federal election. Also, the Court dismissed complaints against rules promulgated by the FEC defining what establishes a coordinated communication. Because these complaints were dismissed, the constitutionality of the FEC's newly promulgated rules on coordinated communication remains uncertain.
1. 124 S.Ct. 619, 694 (2003).
2. McConnell v. FEC, 124 S.Ct. 619, 694 (2003).
8. Id. at 704.
12. Id. at 705.
16. Id. at 706.
18. Id. at 701.
19. Id. at 702.