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

Tue May 12 14:32:46 PDT 2015

Eric wrote:

"[T]he Supreme Court greatly limited the scope of [expenditure] 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."

Of course, Buckley limited the scope of the term "expenditure" only with respect to independent expenditures, not coordinated expenditures.  And as Sean mentioned, this issue is at the heart of the Walker probe and related litigation.  Rather than re-hash CLC's argument here, I'll simply provide a link to the brief we filed with the Supreme Court of WI in March<http://www.campaignlegalcenter.org/sites/default/files/CLC%20amici%20brief.FINAL_.signed.pdf> and point interested readers to argument heading "I. The Regulation of Contributions and Coordinated Expenditures Is Not Limited to Express Advocacy."

And though I believe FEC AO 2011-12 was wrongly decided, for reasons mostly unrelated to this discussion, the Commission engaged in no coordination analysis whatsoever and didn't even mention 109.20, let alone interpret and apply it.  Requestors asked two questions, one pertaining to candidate solicitations for super PACs and the other pertaining to candidate participation in fundraisers without soliciting funds.  The requestor didn't ask about making expenditures, so the FEC didn't opine about expenditures.  To state that the FEC couldn't have reached the conclusion it did without embracing an express advocacy construction of 109.20 simply isn't true.

Under 109.20, any payment for the purpose of influencing any election for federal office (i.e., an "expenditure") made in cooperation, consultation or concert with, or at the request of suggestion of a candidate or the candidate's committee's staff is an in-kind contribution to the candidate.  And super PACs can't lawfully make in-kind contributions to candidates.

Given that an FEC-registered super PAC exists, by its own admission, for the major purpose of influencing federal elections, it's hard to imagine how the money it spends wouldn't meet the "for the purpose of influencing" definition of "expenditure."

Best,

Paul Seamus Ryan
Senior Counsel
The Campaign Legal Center, Recipient of the 2014 MacArthur Award for Creative and Effective Institutions<http://www.macfound.org/maceirecipients/79/>
Ph. (202) 736-2200 ext. 222
Mobile Ph. (202) 262-7315
Follow me on Twitter @ThePaulSRyan<https://twitter.com/ThePaulSRyan>
And follow CLC @CampaignLegal<http://bit.ly/j8Q1bg>

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Tuesday, May 12, 2015 4:55 PM
To: law-election at department-lists.uci.edu
Subject: Re: [EL] "Can Super PAC Which Avoids Express Advocacy Coordinate with Presidential Campaign?"

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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