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

[Rick Hasen]

http://correctrecord.org/correct-the-record-launches-as-new-pro-clinton-superpac/

" Correct The Record, though a SuperPac, will not be engaged in paid 
media and thus will be allowed to coordinate with campaigns and Party 
Committees."

On 5/12/15 1:27 PM, Rick Hasen wrote:
> 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
>>
>>
>>
>>
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>
> -- 
> 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
>
>
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-- 
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

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