February 22, 2000
Rosemary C. Smith,
Assistant General Counsel
Federal Election Commission
999 E Street, N.W.
Washington, DC 20463
Re: Proposed Rules on General Public Communications Coordinated with Candidates: Comments of Brennan Center for Justice at NYU School of Law
Dear Ms. Smith:
The Brennan Center for Justice at NYU School of Law respectfully submits these comments on the Commission’s proposed new rules governing coordinated communications made in support of or in opposition to clearly identified candidates and paid for by persons other than candidates, candidates’ authorized committees, or party committees. We also request an opportunity to testify at the public hearing scheduled for February 16, 2000.
The Commission has requested comment on:
- the text of the proposed rules, including a number of alternative approaches to particular provisions and a series of questions arising out of their application to two hypothetical fact patterns; and
- whether the proposed rules or a different standard should be applied to political party expenditures for general public political communications that are coordinated with particular candidates, and, if not, why and what different standard should be applied.
As is explained below, the Brennan Center has some serious concerns about the proposed rules and believes that they should not be applied to political party expenditures.
The Commission states that its proposed rules are intended to incorporate the standard for coordination articulated by the United States District Court in FEC v. Christian Coalition, 52 F. Supp. 2d 45 (D.D.C. 1999). Although the Christian Coalition definition begins on the right track, we believe it is ultimately too narrow to capture commonplace forms of coordination and therefore opens a dangerous loophole in the federal campaign financing system.
The Christian Coalition court first recognized the constitutionality of treating expressive expenditures – what the Commission proposes to call “general public political communications” – as coordinated if they were made at the request or suggestion of a candidate. See id. at 91. The Brennan Center has no objection to the Commission’s proposal to codify that ruling. As the Christian Coalition court said: “The fact that the candidate has requested or suggested that a spender engage in certain speech indicates that the speech is valuable to the candidate, giving such expenditures sufficient contribution-like qualities to fall within the Act’s prohibition on contributions.” Id. at 92.
Provided that the following standard is understood to establish sufficient (but not necessary) conditions for coordination, the Center also agrees that:
In the absence of a request or suggestion from the campaign, an expressive expenditure becomes “coordinated” where the candidate or her agents can exercise control over, or where there has been substantial discussion or negotiation between the campaign and the spender over a communication’s (1) contents; (2) timing; (3) location, mode, or intended audience . . . ; or (4) “volume” (e.g. number of copies of printed materials or frequency of media spots).
Id. Such control, discussions, or negotiation should certainly suffice to establish the Commission’s right to regulate the expenditures as contributions, as would spending in response to a candidate’s request or suggestion.
But the Commission should reject the idea that coordination requires a candidate’s suggestion, request, or control, or substantial discussions or negotiations with the candidate. And the Commission should jettison the Christian Coalition court’s explanation that: “Substantial discussion or negotiation is such that the candidate and spender emerge as partners or joint venturers in the expressive expenditure, but the candidate and spender need not be equal partners.” Id. Treating conditions that are sufficient for coordination as if they were also necessary conditions, and requiring the functional equivalent of a partnership – or, as the Commission has construed it, “collaboration or agreement” – in the absence of a candidate’s request, suggestion, or control, would open an enormous loophole in the already troubled federal campaign finance system.
For example, the following situation could not be regulated under the Commission’s definition:
A candidate meets with his campaign manager and chief fundraiser. Together they decide that, although it would be desirable to conduct a direct mail campaign throughout the candidate’s district, the available funds will cover advertising only in cities. At the supermarket that night, the treasurer of the local farmers’ PAC casually asks the fundraiser, “Will the campaign be sending literature to rural areas?” The fundraiser truthfully replies, “No, not enough money.” The PAC then decides to send brochures modeled on the campaign mailings to homes throughout the countryside.
The fundraiser made no explicit request or suggestion, and he exercised no control over the PAC’s brochures. There was no substantial discussion or negotiation. The PAC spending therefore would not count as coordinated under the Christian Coalition standard. But surely the PAC’s advertising cannot be regarded as truly independent. The PAC requested key information about the campaign’s advertising needs and strategy from an high-ranking insider and then made expenditures to fulfill those needs and further that strategy.
Similarly, the proposed rules are grossly under-inclusive because they would not prevent a Fortune 500 company from contacting a candidate’s advertising agency, and asking to have the same creative personnel assigned to the campaign design millions of dollars of corporate “issue ads” supporting the candidate in battleground states. Those expenditures are “coordinated” not because of any specific agreement between the candidate and the company but because of the coordinated use of campaign-related resources.
The above examples illustrate some of the more obvious weaknesses of the Christian Coalition definition. The standard fails to cover expenditures that are plainly not independent and that are of real value to campaigns. The test is thus inconsistent with the purposes of the Federal Election Campaign Act (“FECA”), which seeks to reduce the potential for real and perceived corruption. Fortunately, as is explained below, the First Amendment does not preclude the Commission from adopting a broader and more realistic definition.