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

Tue May 12 15:49:18 PDT 2015

The thing I don't understand is why Correct the Record apparently thinks that the line between permissible and impermissible coordination is based upon whether it engages in "paid media" or not.  Perhaps that is just some sort of shorthand, but even if one were to accept that only "expenditures" cannot be coordinated, that would seem to cover far more than merely paid advertisements.  Could Correct the Record, for example, consult fully with the Clinton campaign in researching and preparing a "truth sheet" in response to an attack on her record (even including specific language requested by the campaign), and the money spent on that endeavor would not constitute a contribution as long as the information was publicly distributed in the form of a press release rather than a paid advertisement?

Fredric D. Woocher
Strumwasser & Woocher LLP
10940 Wilshire Blvd., Ste. 2000
Los Angeles, CA 90024
fwoocher at strumwooch.com<mailto:fwoocher at strumwooch.com>
(310) 576-1233
From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Smith, Brad
Sent: Tuesday, May 12, 2015 3:05 PM
To: Paul Ryan
Cc: law-election at department-lists.uci.edu
Subject: Re: [EL] "Can Super PAC Which Avoids Express Advocacy Coordinate with Presidential Campaign?"

Actually, it's quite easy to jmagine- or even to actually hold- that such activity is not coordinated.

Paul says that Buckley only narrowed the definition of expenditure for independent expenditures. Really? No, not really! Nothing so limits its discussion limiting the definition of expenditure.

It is true, of course, that Buckley did not discuss whether "expenditure" could mean something else in other parts of the statute, but usually when a court defines a statutory term, it is defining a statutory term.

All the reasons the court gives for defining "expenditure" narrowly - vagueness and overbreadth-- apply equally to coordinated expenditures. Of course, one might argue that the state has a bigger interest, or that some mitigating factors (such as lack of helpfulness) don't apply. But, conversely, there are added concerns present in Buckley that apply with a vengeance.  Indeed, investigations of coordination are particularly intrusive on rights of association. Thus, the argument for a narrow definition is in many respects even stronger.

The few coordination cases to reach the courts have been particularly skeptical of the type of broad standard that CLC has favored. I expect the Wisconsin cases will soon join these precedents.

Bradley Smith
Sent from my iPhone

On May 12, 2015, at 5:35 PM, "Paul Ryan" <PRyan at campaignlegalcenter.org<mailto: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
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> [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<mailto: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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