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

[Sean Parnell]

Eric: 

 

“…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…”

 

Indeed, that seems to be the operative theory in Wisconsin regarding Scott Walker, WI Club for Growth, et. al. (in the context of Wisconsin law, not federal, of course).

 

 

Sean Parnell

President, Impact Policy Management, LLC

571-289-1374 (c)

sean at impactpolicymanagement.com

Alexandria, Virginia

 

 

 

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Eric Wang
Sent: Tuesday, May 12, 2015 4:06 PM
To: law-election at uci.edu
Subject: [EL] "Can Super PAC Which Avoids Express Advocacy Coordinate with Presidential Campaign?"

 

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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