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

[Steve Hoersting]

This can't be said often enough. Thanks, Eric.

Steve

On Tue, May 12, 2015 at 4:06 PM, Eric Wang <11cfrlaw at gmail.com> wrote:

>  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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-- 
Stephen M. Hoersting
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