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

[Rick Hasen]

This is very helpful, thanks.  I understand that the group is stating it 
will do no paid media, and therefore there are no issues with coordination.

If others disagree with Eric's interpretation, I'd like to hear about it.

Thanks.


On 5/12/15 1:06 PM, Eric Wang 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
>
>
>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election

-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20150512/0cb016a4/attachment.html>