[EL] IE Republishing Campaign Ad

Mon Nov 18 11:53:34 PST 2013

One question is whether independent republication *should* be coordination under the Buckley framework. I think not.

Accepting Buckley (and I realize people like Paul don't really accept Buckley, but it is the law with which we work), the expenditure/contribution distinction is based on the opportunity for quid pro quo bargaining to occur. Where that does not occur, there may be gratitude, there may be influence, but there is not "corruption." A "coordinated" expenditure brings the parties into contact in a way that allows for bargaining. But that's not true with mere republication. Independent is independent. Republishing the candidate's own materials may be more effective than creating your own (or it may not), but whether it is effective is irrelevant to the question of independence. "Independent" is not the same as "disinterested" or "ineffective." "Message coordination" is perfectly legal if what you mean is "message harmony," and that latter is not, let's face it, difficult to achieve. It's only illegal if the parties get together and agree on the message. Why? It's not that they agree on the message, it's that they got together, providing the opportunity for quid pro quo bargaining that is at the root of the Court's definition of corruption that can be legally attacked by prophylactic measures such as campaign contribution restrictions.

The justification for defining republication as per se "coordinated" seems to come from the enforcement imperative, that it may otherwise be too hard to enforce the prohibition on quid pro quo bargaining. But I'm not sure that this is true - I'm not sure it poses any problem greater than generally determining if coordination has taken place even when the messages are developed separately.

The biggest problem with prohibiting "coordination" is that it is a readily hurled accusation, easy to make, and hard to refute. It thus opens up a great risk of political prosecution in which the process is, and is intended to be, the punishment and the deterrent for speaking out on politics.

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] on behalf of Paul Ryan [PRyan at campaignlegalcenter.org]
Sent: Monday, November 18, 2013 1:18 PM
To: Will Moore; Election Law
Subject: Re: [EL] IE Republishing Campaign Ad

Will,

The activity you describe would seemingly clearly violate 11 CFR 109.23 if it occurred in a federal race.  Section 109.23 of the FEC’s regulations establishes that the “financing of the dissemination, distribution, or republication, in whole or in part, of any broadcast or any written, graphic, or other form of campaign materials prepared by” a candidate campaign committee “shall be considered a contribution for the purposes of the contribution limitations . . . .”  At the federal level, an “independent expenditure-only political committee” (a.k.a. Super PAC) is prohibited from making a contribution to a candidate.

We filed a complaint<http://www.campaignlegalcenter.org/index.php?option=com_content&view=article&id=1627:february-27-2012-legal-center-seeks-investigation-of-apparent-illegal-contribution-from-super-pac-to-romney-campaign-&catid=63:legal-center-press-releases&Itemid=61> with the FEC in February 2012 urging investigation of an apparent violation of this provision by the Super PAC Restore Our Future, which paid to air a TV ad produced by Mitt Romney’s 2008 campaign committee.  The FEC does not comment publicly regarding complaints until the matter is resolved and we haven’t heard anything yet.

Of course, San Diego municipal law and California state law governs San Diego mayoral races and I’m not sure precisely how/whether such republication of campaign material is covered by San Diego and California law.

Paul Seamus Ryan
Senior Counsel
The Campaign Legal Center
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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 Will Moore
Sent: Monday, November 18, 2013 12:13 PM
To: Election Law
Subject: [EL] IE Republishing Campaign Ad

Here in San Diego, we have a mayoral candidate who ran a TV ad, then his supporting Independent Expenditure org ran exactly the same ad (with a corresponding different disclosure).

Strikes me as a pretty obvious violation, since republishing is the most straightforward kind of message coordination.

Anybody have any thoughts on this or experience from other jurisdictions?

-Will

William Moore
The Moore Firm - Business Law
5755 Oberlin Dr., Suite 301, San Diego CA 92121 | www.themoorefirm.net<http://www.themoorefirm.net>
(858) 210-7999 | wmoore at themoorefirm.net<mailto:wmoore at themoorefirm.net>
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