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

Tue May 12 14:58:21 PDT 2015

Like Paul, I disagree with Eric's conclusion about *Buckley*’s application.
If a super PAC has coordinated as defined by 11 C.F.R. 109.20(a),
constitutionally its spending may be limited as a contribution if it is
made for the purpose of influencing an election, not just if it contains
express advocacy. It’s true that *Buckley* narrowed the definition of
“expenditure” due to vagueness concerns, but that analysis applied to
independent expenditures. Once a candidate and outside group have
collaborated, the spending is not independent. When spending is not
independent, it can be treated as a contribution, and therefore need only
be made for the purpose of influencing the election.

If the “express advocacy”  limitation was mandated by *Buckley* as applied
to coordinated expenditures, that would mean that a candidate could
completely control a super PAC’s advertising content, but the spending
would still be considered independent if it did not contain the magic words
– that would make contribution limits drastically narrower, and 109.21 and
many state laws would be unconstitutional.  While Judge Randa in Wisconsin
has taken that view, his reasoning was a flawed interpretation of precedent
and was called into question by the Seventh Circuit.

Eric’s characterization of the FEC’s regulations is fine so far as it goes,
but—as you probably recall—half the FEC said in AOR 2011-23 (American
Crossroads) that an expenditure can be “coordinated” under the FECA (and
thus count as a contribution) even if it is not “coordinated” for purposes
of 11 CFR 109.20-21.

Brent Ferguson

On Tue, May 12, 2015 at 5:32 PM, Paul Ryan <PRyan at campaignlegalcenter.org>
wrote:

>  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 <%28202%29%20736-2200%20ext.%20222>*
>
> *Mobile Ph. (202) 262-7315 <%28202%29%20262-7315>*
>
> *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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>  --
>
> 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
>
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>
> rhasen at law.uci.edu
>
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>
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>
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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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