Clearing up confusion about American Crossroads and the content standard coordinated expenditures

The FEC has been tied up in knots lately with the question of what constitutes a coordinated expenditure, and this in turn finds the “reform community” with its knickers in knots over the Commission’s failure to rein in coordinated expenditures as the reformers would like.


The definition of a “coordinated expenditure” is particularly important to the FEC – and to political speakers – because the First Amendment to the Constitution prohibits the government from generally limiting political speech. Thus, all Americans have a right to spend whatever sums they choose, or collectively, whatever sums they can raise, to promote their political beliefs and favored candidates. At the same time, however, the Supreme Court has held that the government can limit the size and source of contributions to campaigns in order to prevent corruption or its appearance. Furthermore, expenditures that are made in “coordination” with a candidate are treated as “contributions,” and so are subject to federal size limitations and source prohibitions.


This doesn’t sound too difficult yet – all that’s needed is to establish what constitutes “coordination” and those expenditures will be subject to the same limits as contributions – but the issue is made more difficult by the question of what constitutes an “expenditure.”  The 1974 Amendments to the Federal Election Campaign Act – the core of current law – defined an “expenditure” as “anything of value … for the purpose of influencing a federal election.”


In Buckley v. Valeo, the Supreme Court, noting that this definition could essentially encompass all speech about politics, held that such a definition was unconstitutionally over-broad and vague unless given a narrowing construction. After all, almost any speech – at least any speech that referred to a candidate – might influence an election. Narrowing the construction to speech about candidates, as the court of appeals had done, helped cure the overbreadth problem, but still left the statute too vague. In particular the Court was worried that absent a more precise, less vague definition of “expenditure,” speakers would be afraid to engage in what ought to be constitutionally protected speech, due to the fear of prosecution. The narrowing construction adopted by the Court to cure this vagueness problem is what has become known as “express advocacy,” that is speech using words of explicit advocacy of election or defeat of a candidate, such as “vote for,” “vote against,” “elect,” “defeat,” and the like. Having done that, however, the court still held that independent expenditures could not be limited by the government. And over the years, the Court, and lower courts, repeatedly resisted efforts to expand this definition of “expenditure.” Thus, converting an “expenditure” into a “contribution” by a finding of “coordination” has enormous legal consequences for a speaker.


But what constitutes a “coordinated expenditure.” More precisely, is a “coordinated expenditure” any disbursement of money made “for the purpose of influencing an election” that is coordinated, or is it limited to spending on “explicit words of advocacy of election or defeat” that is  coordinated?


This is vitally important for a couple of reasons. First, investigations into whether or not an expenditure was “coordinated” are among the most intrusive in which the FEC engages. They typically require reviewing memoranda, emails, and other documents that may discuss the political strategies of candidates and groups; they typically require depositions of numerous key officers in both the campaigns and the groups doing the spending. These are problems that the Supreme Court has tried to avoid in recent years, recognizing that the threat of long investigations can itself chill speech.


Second, allegations of coordination are extremely easy to make. Almost every major group that wishes to make substantial independent expenditures will have considerable contact with members of Congress. Thus it is very easy to allege that one’s opponent has coordinated activity – we know, for example, that the NRA has people who talk regularly with members of Congress; certainly it would be possible that in these conversations they have discussed the expenditures in a way that would make them “coordinated.” Once the complaint is made and an investigation begun, the target faces substantial legal and other costs. The complainant faces no cost whatsoever.


Can all coordinated disbursements of funds really be treated as “coordinated expenditures,” which is to say, subjected to the limits placed on “contributions.” To take a specific hypothetical, if various campaign finance reform groups were to meet with a Senator McFein, and agree that the group should run ads supporting the McFein-Caingold campaign finance legislation, would that be a coordinated expenditure, and thus treated as, and subject to the limits on, contributions? If so, it would presumably suffer from the overbreadth problem noted by the Court of Appeals in Buckley, and reemphasized by the Supreme Court. We could avoid this, perhaps, by limiting the definition to spending “for the purpose of influencing an election,” but this leave the exact same vagueness problems that caused the Supreme Court to further narrow the meaning of the term “expenditure.” In short, adding “coordinated” doesn’t make the vagueness problem recognized by Buckley go away.


(One might note here that many people on both sides of the issue question the distinction between “contributions” and “expenditures” for First Amendment purposes. But all agree that that is the rule, and has been for 35 years. Whether it should changed, and if so, in which direction – deregulate all, or regulate all – is another question for another day.)


Nevertheless, for many years the FEC took that position that if the expenditure was coordinated with a candidate, it would be treated as a “contribution” regardless of its content. This interpretation was effective in silencing some speakers who didn’t want the huge hassle of a costly, intrusive FEC investigation that could reveal the speaker’s political tactics and strategies and the subject of its internal deliberations and conversations with members of congress. In the 1990s the FEC conducted a series of lengthy, costly investigations that ultimately resulted in defeats in court or eventual findings of no violation. All of these could have been easily terminated early on had the FEC merely employed the express advocacy test of Buckley.


On joining the Commission in 2000, I insisted that the Commission’s approach to coordinated communications, if it was to comply with Buckley decision, had to include a “content limitation,” that is, a narrowing construction of the term “expenditure.” In new coordination regulations adopted in the fall of 2000, the Commission sidestepped the issue, effectively allowing individuals commissioners to apply or not apply a content standard as they saw fit. By 2002, however, in regulations implementing the McCain-Feingold bill, the Commission was prepared to and did adopt a limiting definition of “expenditure” in the context of coordination, restricting it to communications containing certain types of content about an election. These regulations were amended again in 2006, but kept the approach of a content limitation. In particular, before finding that a communication is a “coordinated expenditure” – and thus subject to all the limitations on contributions – it must be both “coordinated” and it must meet certain content limitations.


Specifically, the regulations exempted speech from a coordination analysis unless it republishes campaign material or constitutes “express advocacy” at any time; mentions a candidate in his district within 90 days of an election (or 120 days of a presidential primary or election), here importing an approach that the Supreme Court had held was constitutional in McConnell v. Federal Election Commission; or, borrowing from the Supreme Court’s decision in Wisconsin Right to Life v. Federal Election Commission, “is susceptible of no reasonable interpretation other than as an appeal to vote for or against a … candidate,” a phrase which itself is sharply limited by Supreme Court precedent to mean, well, either “express advocacy” or something extremely close to it.


This approach allows speakers to know what they can and cannot say without risking an enforcement action by the FEC or prosecution by the Department of Justice – exactly the concern that motivated the Supreme Court in Buckley.


Like any bright line rule intended to avoid vagueness, the FEC rule has pluses and minuses. The minus – at least to self-styled campaign finance “reformers” – is that it allows more political speech to escape the source prohibitions and size limitations of being treated as a “contribution.” The plus is that it protects political speech, the core aim of the First Amendment, and allows Americans to speak without worry about being dragged into a lengthy, intrusive FEC investigation.


What now brings the issue to the fore is an Advisory Opinion Request filed with the FEC by American Crossroads in November. Here is how Crossroads, a Republican-oriented independent expenditure PAC organized by Karl Rove, phrased the question:


Consistent with the Federal Election Campaign Act, as amended, may American Crossroads produce and distribute television and/or radio issue advertisements featuring on camera footage (or voice-over, in the case of radio advertisements) of incumbent Members of Congress who might face uncertain re-election prospects? Such advertisements would be thematically similar to the incumbent Members’ own re-election campaign materials, and may use phrases or slogans that the Member has previously used. The purpose of these advertisements, while focused on current legislative and policy issues, would be to improve the public’s perception of the featured Member of Congress in advance of the 2012 campaign season. If American Crossroads produces and distributes such advertisements, would it subsequently be limited in its ability to produce and distribute an independent expenditure in connection with the election of the previously featured incumbent Member of Congress and federal candidate?


More specifically, Crossroads noted that its ads would not violate any of the content standards discussed in the regulations – that is, they would not include express advocacy, reprint campaign material, or be published with 90 days of an election in the candidate’s district. But they would definitely meet the conduct standard of coordination:


The advertisements that American Crossroads plans to produce and distribute would feature an incumbent Members of Congress facing re-election in 2012, speaking on camera (or in voice-over, in the case of a radio advertisement) about one or more legislative or policy issues. The legislative or policy issues discussed will be issues that will likely also be debated and discussed in that Member’s upcoming 2012 re-election campaign. For example, if the incumbent Member’s campaign website prominentiy features job creation as one of his or her signature issues, the American Crossroads advertisement would also feature that Member discussing job creation. Or, if the incumbent Member’s campaign has chosen to focus on opposing reforms to Social Security and Medicare, the American Crossroads advertisement would feature that Member discussing his or her opposition to various Social Security and Medicare reform proposals.


The Crossroads request followed a number of ads along the lines described by Crossroads made the Nebraska Democratic Party, featuring endangered Democratic Senate incumbent Ben Nelson.


And it followed a similar matter stemming from the 2008 campaign of Oregon Democrat Jeff Merkley for U.S. Senate. Merkley had benefited from similar ads run that year by the Democratic Party of Oregon. The Commission had voted at that time 5-0 (with one Democratic commissioner recused) that the ads did not meet the content standard of the coordination regulations.  


After a good deal of back and forth, this month the FEC found itself unable to issue an opinion on the Crossroads Request. Simply put, the three Democrats felt it was clearly coordination; the three Republican commissioners felt it was not. Republican Commissioner Don McGahn, the current bête noir of the “reform” community, after noting that the regulations pretty clearly do not consider such speech within the ambit of content standards of the coordination definition, theatrically ripped pages out of the FEC’s book of regulations in public session.


To the reform community, the issue is patently absurd. How can an ad that features a candidate and on which the candidate and the speaker have conferred not be considered “coordinated”? It would seem to defy common sense.


But then, lots of legal rules appear at first glance to defy common sense. A prime example might be federal rules on confessions in criminal trials. Every day, voluntary, uncoerced confessions by persons well aware of their rights are thrown out as evidence because the accused was not read his Miranda rights, or because the questioning went on after the accused requested an attorney.


Such “prophylactic” rules only begin to make sense once we understand what the rule is trying to accomplish. The Miranda rule may help make sure that confessions are of greater value (coerced confessions are more likely to be false), but its primary purpose is to protect the accused from coercion and trickery, without dragging the courts into lengthy guessing games about what the defendant knew about his rights, or the extent of coercion. If the purpose is to make sure that all valid confessions are admitted as evidence, the Miranda rule makes no sense – it is clearly weighted too heavily in favor of the accused to accomplish that. If the purpose, however, is to protect the rights of U.S. citizens, the rule makes much more sense – indeed, it may not go far enough.


Similarly, once we understand that the purpose of the narrowing definition of “expenditure”  – which is in the FEC’s regulations – is to protect First Amendment rights, the rule makes a lot more sense. For years reformers have chafed under the Supreme Court’s determination that only “express advocacy” triggered political committee status, and its attendant legal obligations – for speakers making expenditures (as opposed to “contributions” to campaigns or parties).  The current outrage is just the same battle that reformers have lost repeatedly in the courts, with rare exceptions – the idea that “express advocacy” (or other limited, bright line rules) serves an important purpose in protecting First Amendment rights. The FEC’s content standard already allows far more speech to be treated as a “contribution” (and so subject to much heavier regulation) than would strict adherence to the “express advocacy” rule of Buckley.


A rule that allows considerable leeway – that contains, in “reform” lingo, a giant “loophole,” one “so big you can drive a Mack Truck through it” – is common in First Amendment law. For example, libel lawsuits by public officials are almost impossible to win under the standard of New York Times v. Sullivan; “fighting words” can, in theory, be regulated, but in practice no prosecutor is going to prosecute someone for “fighting words” because it is almost impossible to win. The same with incitement to riot.


So long as we have limits on “contributions,” it makes sense to treat “coordinated expenditures” as “contributions.” But it also makes sense to include  a strong content limitation, for the same reasons that the Court has adopted a narrowing limitation on “expenditures” generally. It may be that the FEC’s rule takes too much speech out of the regulatory ambit, but the reform community forfeited any opportunity to shape that rule by refusing to accept the necessity, let alone the desirability, of it, or even to recognize the rationale for it.


As a result, the Republican commissioners now seek to enforce the regulations on the books. The reform community, which has long enjoyed sputtering in indignation about how the Commissioners “refuse to enforce the law” are left now to sputter, louder and with more indignation, that the Republican commissioners insistence on enforcing the regulations as written is “refusing to enforce the law.”


See Buckley v. Valeo, 424 U.S. 1 (1976); First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978); Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010); v. Federal Election Commission, 599 F.3d 686 (D.C. Cir. 2010).

Buckley. Limits may not, however, be set so low as to render candidates and parties unable to campaign effectively. Randall v. Sorrell, 548 U.S. 230 (2006).

See Wisconsin Right to Life v. Federal Election Commission, 551 U.S. 449 (2007).

Federal Election Commission v. Christian Coalition, 52 F. Supp. 45 (D.D.C. 1999).

See Federal Election Commission, MUR 4624 (The Coalition) (dismissed against all 33 respondents May 17, 2001), see Bradley A. Smith Statement of Reasons (Nov. 6, 2001); Federal Election Commission, MUR 4291 (AFL-CIO) (dismissed July 11, 2000).

11 C.F.R. 109.21

540 U.S. 93 (2003).

MUR 6037 (Jeff Merkley).

AOR 2011-23.

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