[EL] "Can Super PAC Which Avoids Express Advocacy Coordinate with Presidential Campaign?"

[Eric Wang]

http://electionlawblog.org/?p=72403

Regarding Rick's question about the Correct the Record super PAC, which, 
according to the NYT piece, purports to be able to coordinate with the 
Clinton campaign by avoiding express advocacy independent expenditures: 
Theoretically, a super PAC could interact with super PACs and not run 
afoul of the coordinated communications regulations at 11 C.F.R. 109.21 
if it avoids any of the content standards at 109.21(c).

Indeed, we are all familiar by now with federal candidates who raise 
money for super PACs within the federal limits, as blessed by the FEC in 
AO 2011-12 (Majority PAC / House Majority PAC) (a unanimous decision, by 
the way). In the layman's sense, when candidates appear at super PAC 
functions, they are "coordinating" with the super PACs.  The question 
then becomes whether such "coordination" is prohibited under 11 C.F.R. 
109.20, and how broadly that general coordination regulation is to be 
read.  Candidate appearances at super PAC functions could be said to be 
"made in cooperation, consultation or concert with" the candidate. /See/ 
11 C.F.R. 109.20(a).  But the crucial question is whether such 
transactions result in an "expenditure," which is the second part of the 
regulation. /See/ /id./ 109.20(b).  Arguably, if the activity is not for 
an express advocacy "expenditure," then it also would not fall under the 
general coordination rule at 109.20.

While the statute defines an "expenditure" generally as anything "for 
the purpose of influencing any election for federal office," 52 U.S.C. 
30101(9)(A)(i), the Supreme Court greatly limited the scope of that term 
in /Buckley/.  Without such a limitation, the FEC could not have reached 
the conclusion it did in AO 2011-12 consistent with 11 C.F.R. 109.20.  
Indeed, if that regulation were read more broadly, it would shut down 
many non-election-related issue/policy-related interactions between 
advocacy groups and politicians.

- Eric Wang


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