[EL] Roemer ad & coordinated communications

[Smith, Brad]

Tom Cares' message (below) raises issues that the FEC has attempted to deal with for some time.
 
Until prohibited by the 1996 decision in Colorado Republican Party v. FEC, the Commission assumed coordination any time a party ran an ad about a candidate or his opponent. The Court found that such a per se assumption was unconstitutional following Buckley's protection of independent expenditures.
 
 
When I arrived at the FEC in 2000, it was the FEC's policy to consider any coordinated ad a violation of contribution limits (assuming it went over the low contribution limits - of course they all do) regardless of its content. That led to exactly the type of problem Tom describes below. 
 
 
In a 2000 rulemaking on coordinated contributions, the Commission finessed the question of whether there was any content limit on what could constitute a "coordinated communication," with the rule remaining vague enough that some members could claim there was not, and some could claim there was. In rulemakings in 2002 and later, the FEC finally accepted that there had to be some content requirement to a communication before it could constitute a "coordinated expenditure" under the law. However, agreeing on a content requirement that would not be unconstitutionally vague has proven quite difficult, as each of the FEC's efforts has been immediately challenged in court by various groups whose ultimate position is that of the pre-2000 Commission, than any coordination constitutes a regulated "coordinated expenditure" regardless of the content and its apparent connection (or lack of connection) to a campaign. But that standard is probably unconstitutional under the overbreadth doctrine. It can be slightly narrowed by arguing that the content standard would be "for the purpose of influencing an election," but the Supreme Court has held standard that to be unconstitutionally vague since Buckley. 
 
 
Note that Tom views the Roemer ad as an "issue ad." Personally, I don't, except to the extent that we would exempt all Roemer expenditures from campaign finance laws as issue ads, on the grounds that he has no chance of winning, and must know that, so is really just trying to promote issues even though he ask people to vote for him. But that's not a good standard, for reasons Tom suggests. It's precisely the subjective standard that the Court has consistenly said must be avoided. Meanwhile, if we choose a bright line standard, the ad features a candidate for president talking about an issue on which he has staked much of his campaign. We can evaluate that subjectively, and people can have "is too/is not" shouting matches, or we can return (if the courts would allow it) to holding that the content of the communication is irrelevant, or we can try to develop bright line criteria, which is also - as Tom notes - hardly a perfect solution (assuming the validity of the whole project). I can't imagine a bright line criteria that would not include an express advocacy test - obviously, the regulatory lobby obviously thinks the standard is far too accommodating to speech interests already. One thing for sure: Trevor's efforts notwithstanding, being too clever by half doesn't exempt you from the law.
 
 
There are, then, answers to Tom's questions. In his first example, the ad is OK if the Senator is not a candidate for re-election. If he is a candidate, it will depend on objective factors of timing and the full content of the communication.
 
 
In the second example (Eliz. Warren), Warren's ad could clearly run outside of Massachusetts. Within Massachusetts, it would again depend on objective factors of timing and full content. 
 
 
These are exactly the types of problem that the reform groups and the media (and at least some federal judges) tend to ignore, but which are not so easily ignored by the Commission itself, which is why for the past decade, despite significant turnover on the Commission, it has always insisted on some type of content standard. 
 
 
Brad Smith
 
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Tom Cares wrote:
 
[To make the most of list-members' inbox real estate, I've included, at the bottom, an email sent out by the Colbert super pac a little earlier.]

If the rubicon line is Buddy speaking the words "vote for me", then this becomes not so much an election law issue, but an issue of the appropriateness of very narrow precedents in general. 

Featuring a candidate in an issue ad about the boundaries of PACs/501c4s/etc featuring candidates in so-called issue ads, and having him say "vote for me" in the context of giving an example of what can't be said, is particularly unique and uniquely innocent.

A hard line, on the other hand, against candidates appearing in pac-funded issue ads, even only during pre-election periods, raises challenging questions and hypotheticals:

If a Senator, up for re-election, is the author and figurehead of a controversial bill and a PAC wants to run an ad in a House district in the Senator's state where the Senator asks the district's residents to urge their member of congress to support the bill, is it constitutionally permissible to prohibit that?

If a PAC wanted to feature Elizabeth Warren - probably the most prominent figure on consumer financial protection and the controversy around making the Consumer Financial Protection Bureau operable - discussing the CFPB controversy in a national ad, while she's running for US Senate, would it be constitutionally permissible to prohibit that?

In general, it's not really a rare thing that figureheads on issues are also candidates for public office (the aptitudes are very aligned).