In October, the Nebraska State Democratic Party ran this advertisement. Seemingly innocuous, it closes with Nebraska Senator Ben Nelson registering his intent to oppose any attempts to weaken Social Security or Medicare. Senator Nelson’s appearance is what makes the advertisement exceptional. His decision to work directly with an outside group circumvents established prohibitions on coordination between politicians and entities that make independent political expenditures. The Federal Election Commission (FEC) has already been asked to clarify the legality of Senator Nelson’s appearance. The agency’s decision is, in effect, a referendum on one of two remaining pillars of campaign finance reform: contribution limits.

The Doctrine

In the decades since the Supreme Court’s foundational campaign finance decision, Buckley v. Valeo (1976), candidates have not appeared in advertisements run by outside groups. Candidates have exercised discretion with good reason. Though the Buckley Court struck down limits on independent expenditures, it not only upheld limits on contributions, but also affirmed constraints on expenditures coordinated between candidates and outside groups. Like contributions, the Court said, coordinated expenditures implicate the government’s compelling interest in avoiding the actual or apparent existence of quid pro quo corruption. The Court asserted that:

“[Independent Expenditures] controlled by or coordinated with the candidate and his campaign might well have virtually the same value to the candidate as a contribution and would pose similar dangers of abuse.”

The Court continued, asserting that the Federal Election Campaign Act’s (FECA) requirement that expenditures be executed independently “alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.” This strong language has been reinforced by a series of Supreme Court decisions culminating in Citizen’s United, where the Court reiterated that “prearrangement and coordination” implicate the actual or apparent corruption concern. As a result, the statutory definition of contributions still includes any expenditures “made in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate.” That definition, and the Court’s willingness to effectuate it, effectively deterred coordination for decades. What is worrisome, however, is that recent litigation suggests the FEC may not credit the Court’s body of law on coordination.

 The Shays Cases

After Congress passed the Bipartisan Campaign Reform Act (BCRA) in 2002 (the McCain-Feingold Act), the FEC initiated rulemaking proceedings to update its regulations. With regard to its coordinated communication regulation, the agency had no choice but to revisit its definition—Congress ordered it to do so in the BCRA. Congress required that the new regulation “not require agreement or formal collaboration to establish coordination.” Pursuant to that directive, the FEC created two standards, one a default and the other applicable within 120 days of an election or primary. The default standard was subsequently challenged in Shays I. The standard defined coordinated communications as those that “either recycle official campaign materials” or “expressly advocate[ ] the election or defeat of a clearly identified candidate for federal office.” After the DC District Court invalidated the definition, the FEC appealed. Affirming, the DC Circuit Court recognized that the definition not only enabled candidates to collude with independent expenditure groups, but also allowed them to do so explicitly. As the Respondent’s had noted, candidates and outside groups could reach express written agreements outlining particular strategies and delineating content, so long as subsequent advocacy did not “recycle official campaign material” or use the magic words associated with express advocacy. Invoking McConnell, the Court reasoned that the FEC’s standard relied were “functionally meaningless.” The FEC, having devised an anti-coordination regulation that permitted express coordination, was told to try again.

The FEC’s next attempt to define coordinated communications looked familiar when it came before the DC Circuit. The agency had, ostensibly, left its previous definition intact. It justified this decision by suggesting that outside of the prescribed windows—90 or 120 days—political spending was marginal enough to warrant a relaxed approach. The DC Circuit found that logic unavailing. In litigation termed Shays III, the Circuit again used the language of McConnell holding that:  

The FEC’s coordinated communication definition frustrated Congress’s intent of “prohibiting soft money from being used in connection with federal elections.”

Further, the Court felt that the agency’s regulation “would lead to the exact perception and possibility of corruption Congress sought to stamp out in BCRA, for ‘expenditures made after a wink or nod often will be as useful to the candidate as cash.’” (Quoting FEC v. Colorado Republican Federal Campaign Committee). What worries is that the FEC appears strident in its belief that coordinated communications should not be prohibited beyond a narrow pre-election window. It has promulgated regulations to that effect despite statutory language and Supreme Court language that suggest coordinated communication introduces the risk of actual or apparent quid pro quo corruption.

The Pending Request for an Advisory Opinion

            The FEC’s recalcitrance on the coordination issue may prove problematic for this election cycle. Following Senator Nelson’s appearance in the Nebraska State Democratic Committee’s advertisement, American Crossroads asked the FEC to clarify the legality of coordinated spending. The Advisory Opinion Request asks whether the group may produce advertisements that are “thematically similar” to those produced by candidates. It further asks whether it may use “phrases or slogans” that the candidate or officeholder has previously used. American Crossroads notes that it would not distribute these advertisements with ninety days of an election. The group further asserts that its advertisements would not constitute express advocacy, or the functional equivalent thereof.

Ultimately, the request asks whether an advertisement “fully coordinated with incumbent members of Congress facing re-election in 2012” violates the prohibition on coordinated communication.

Many have weighed in. Stephen Colbert—in his capacity as chair of the super PAC Americans for a Better Tomorrow, Tomorrow—submitted comments manifesting agreement “that fully coordinated expenditures shouldn’t be counted as coordinated expenditures.” The comedian noted that “the candidate would merely be appearing as a paid spokesperson, who, coincidentally, is closely aligned with the candidate that he or she also is.” Satire aside, watchdogs groups like the Campaign Legal Center, Democracy 21, and the Brennan Center for Justice have filed comments reiterating that permitted this coordination would transgress both Supreme Court precedent and existing statutory law. The concern is that an adverse opinion from the FEC could not be corrected in time to ensure that independent expenditure groups—like the super PACs that are permitted to raise capital through unlimited contributions—do not distort the 2012 election cycle. Given the FEC’s approach in Shays, the concern is well founded. The Commission is obliged to issue an advisory opinion—or inform the requester than no opinion can be reached—within sixty days of receipt. American Crossroads filed on October 28th, 2011.