[EL] a query about Super Pacs and Coordination

[Eric Lycan]

Joe, I have always viewed it the same way.  What concerns me more is whether the "at the request or suggestion of" component of coordination would likewise be viewed only in reference to a particular message.  That is "Hey, supporter, go start a Super PAC and do IEs that benefit me" versus "Hey, supporter, go start a Super PAC and run an ad about my opponent's vote on Obamacare".  Would both be coordination, or only the latter?  I find it difficult to definitively say, especially in relation to state laws and regulators where the statutory/regulatory language and the issues are not as well developed.



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From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Joe La Rue
Sent: Thursday, September 20, 2012 6:30 PM
To: Frank Askin
Cc: law-election at UCI.edu
Subject: Re: [EL] a query about Super Pacs and Coordination

Prof. Askin,

In my view, 11 CFR 109.21(d)(3)'s "substantial discussion" requirement refers to the particular message an independent expenditure committee makes, not prior discussion that officials of the committee may have had with a candidate about overarching themes. The fact that someone worked closely with a candidate in the past does not mean that he will discuss particular messages with the candidate in the present, which is what is necessary for a particular message to be coordinated.

What's interesting to me is that even though a person knows what the "big picture" message should be, that does not mean that he will communicate a specific message in a way that benefits the one he is trying to help. Take, for example, Missouri Senate candidate Todd Akin. I'm confident that he knows what the GOP's position on abortion is. But that knowledge did not help him when he communicated his specific message about abortion. He had not "cleared" his specific message with the GOP, and his message caused embarrasment to Mr. Romney and the GOP as a result.This is a good example, I think, of how an uncoordinated, specific message may not be helpful to the one the speaker wants to help. That, is one reason why there is no danger of corruption when messages are produced independently of candidates.

Joe
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On Thu, Sep 20, 2012 at 1:10 PM, Frank Askin <faskin at kinoy.rutgers.edu<mailto:faskin at kinoy.rutgers.edu>> wrote:
can any one give me a succinct justification that Rahm Emanuel's new
Super Pac will not be in coordination with the Obama campaign under
109.21?  As a former co-chair of the Obama campaign, who will be issuing
public communications supporting Obama's candidacy won't the PAC easily
satisfy both the content and conduct standards on 109.21?  Or is it
necessary under (d)(3) that the specific "communication", not the
general message have been discussed with the campaign or the candidate?
FRANK


Prof. Frank Askin
Distinguished Professor of Law       and Director
Constitutional Litigation Clinic
Rutgers Law School/Newark
(973) 353-5687<tel:%28973%29%20353-5687>
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