Coordination regs headed back to court?

Last week, on a bipartisan 5-to-1 vote, the Federal Election Commission approved rules for coordinated communications.

The professional reform lobby promptly objected, and this matter may be headed back to court. Fred Wertheimer, who, as HoltzmanVogel notes, also goes by the nom de guerre Democracy21, stopped just short of threatening a lawsuit challenging the newly-adopted rules in an interview with BNA.

In the interview, Wertheimer blasts the new coordination regulation as “different from the old regulation in name only—and … is yet again is contrary to law” [sic]. Actually, though, the regulation is an expansion of the coordination regulations—regulating the “functional equivalence of express advocacy” instead of the old test which only captured “magic words” such as “vote for” and “vote against.”

Wertheimer’s main gripe is that the FEC didn’t adopt what’s known as the PASO (Promote, Attack, Support or Oppose) standard, a much stricter guideline.

“Under the new FEC regulation, a Representative or Senator, or other congressional candidate, will be able to sit down with a corporate executive, draft an ad promoting his or her campaign and have the executive’s corporation pay for broadcasting the ad when and where the candidate wants—and none of this constitutes ‘coordination’ in the view of the FEC, so long as the ad is run after the candidate’s primary and more than 90 days before the election, and does not expressly say ‘vote for’ the candidate or its functional equivalent,” according to Wertheimer’s statement. “The FEC’s regulation, in short, defies common sense.”

Wertheimer’s “common sense” means more regulation is better regulation, but that doesn’t mean his view is grounded in reality, as CCP explained in detailed comments to the FEC on this issue in advance of March public hearings.

Pro-regulation groups can hardly complain that the Federal Election Commission has not adopted a PASO content standard. Congressional Democrats attempted to include this onerous standard in the DISCLOSE Act, which only proves—if more proof were needed—that such a standard is not the law.

The FEC was not defying the courts. They were doing exactly what they were told. In Shays and Meehan v. FEC (Shays III), the court said the FEC had to adopt a standard that was broader than “express advocacy” under the old rules, but specifically said that the agency “may choose a content standard less restrictive than the most restrictive it could impose,” and that the standard must “rationally separate[] election-related advocacy from other activity falling outside FECA’s expenditure definition.” [Shays III Appeal, 528 F.3d at 926]

The “functional equivalent” of express advocacy standard is necessarily broader than election activity, and the FEC did not adopt the most restrictive content standard, which is what Wertheimer wanted. Moreover, his preferred PASO standard would not rationally separate election-related speech from other activity—the PASO standard would sweep in issue advocacy and other grassroots activity and regulate them as expenditures, which is not only contrary to Shays III but unconstitutional.

Wertheimer’s statement contains horror-story hypotheticals about corporate collusion with candidates, but groups on the left and right—including labor unions and liberal advocacy groups—supported the “functional equivalent” test and opposed the PASO standard. This is not just about corporations. The FEC received comments from the AFL-CIO and the Alliance for Justice (an organization of left-leaning non-profits) supporting the FEC’s approach.

Wertheimer called the new rules a “dangerous loophole” that “will be available in future congressional races.”

This makes no sense. The existing rules only contain the “magic words” express advocacy test. While the rule the FEC adopted last week is not as strict as Wertheimer would like, even he must acknowledge that the agency made the coordination rules stricter by also regulating communications that contain the functional equivalence of express advocacy. Thus, it’s totally false to suggest, as he does, that the FEC is creating some new “dangerous loophole” when, in fact, it’s narrowing his perceived loophole under the existing rules.

In his screed, Wertheimer also complains about the so-called donut hole, which was specifically upheld by the Shays III district court. The court agreed with the FEC that the “vast majority of candidate advertising occurred within” the 90/120-day time windows [Shays III, 508 F. Supp. 2d at 42]. In other words, there just isn’t a whole lot of campaign advertising (however one defines that) that falls in Wertheimer’s “donut hole.” He’s trying to relitigate an issue that’s already been settled by his preferred court.

Not one of the FEC commissioners who voted for the first set of coordination regulations is still on the FEC. Wertheimer makes it sound like the FEC is some stubborn, recalcitrant body. Yet, again and again, different commissioners keep reaching bipartisan agreement that what pro-regulation groups want is not the law. In fact, it cannot be the law, because it would run into the same overbreadth problems that the Supreme Court highlighted in Buckley v. Valeo and, again 30 years later, in FEC v. Wisconsin Right to Life.

Despite claims that the campaign finance sky is falling because the FEC hasn’t adopted a PASO standard, none of Wertheimer’s horror stories have come true in eight years.

What Wertheimer wants is a standard in which communications that have no connection to a campaign are called campaign communications. For example, under PASO, if a candidate sat down and worked with a group, with the two passing suggestions back and forth on how to pass the DISCLOSE Act, subsequent communications by that group saying anything positive about the candidate would then be campaign communications.

It would have been impossible for the FEC to craft Wertheimer’s preferred PASO standard without necessarily sweeping in all sorts of legitimate issue ads. Take the ads at issue in WRTL, which one could argue were critical (thereby meeting the PASO standard) of Sens. Herb Kohl and Russ Feingold for filibustering judicial nominees. Even if the Senators’ electoral opponents coordinated those ads with a third party, they could have legitimately been concerned about the issue—and they have every constitutional right to coordinate those ads with third-party groups.

The FEC included the WRTL example, as well as a dozen other examples, in the Notice of Proposed Rulemaking on Coordinated Communications. Any reasonable person would not treat most of those examples as campaign speech, even if coordinated. Several commissioners invited commenters to specifically address these examples. Wertheimer had the opportunity to do so, and to explain how to craft a broader content standard that could rationally separate the non-electoral, issue ad examples from ones that were genuine campaign ads. He did not, because it is impossible to draw such distinctions using the broad test that he proposes.

The new coordination regulations are not perfect. They reflect a compromise by the FEC to comply with court rulings. Pro-regulation groups will never be happy with the FEC until the agency endorses every aspect of its agenda. Fortunately, the FEC must follow the law—not the law as according to Fred Wertheimer & Co.

The Center for Competitive Politics is now the Institute for Free Speech.