Coordination Controversy in the Twitterverse

November 19, 2014
posted by Bob Bauer

It may have been legal, or perhaps not, depending on the facts, which are so far not fully known.  But the use of  Twitter to feed polling information to outside groups lends itself to various conclusions about the state of campaign finance law.  The content of the FEC rule against coordination can be brought into question, or its enforcement criticized, or the problem can be passed off as another instance of shenanigans by a regulated community always exploring paths around the law.  Or the issue could be, more profoundly, the very conception behind the current anti-coordination rules.

The rules in place have been given considerable thought and are quite complicated. On their face, they’re not unreasonable. They attempt to distinguish between the case where a candidate is merely picking somebody’s pocket, in control of what is spent on her behalf, and the case where the spender retains control but, looking to make the most effective use of the money, wants to incorporate in this assessment the candidate’s view of the state of the campaign.  The coordination rules apply where the candidate has requested an ad, or the spender and candidate have engaged in discussions about particular proposed public communications—for example, “substantial discussions in the course of which “material information” is shared that would affect the choice of content or the timing of campaign advertising. In sorting out when a discussion becomes substantial, the agency inquires into whether information has been “conveyed … about the candidate’s or political party committee’s campaign plans, projects, activities, or needs.” See 11 C.F.R. 109.21(d)(1)-(2). (These rules also apply to advertising paid for in coordination with parties, or with the “agents” of parties or candidates.)

The risk addressed by the rules is that the spender is merely doing the candidate’s bidding and the speech is hers, not the spender’s. In the Supreme Court’s terms, of course, this is the difference between unlimited independent expenditures and a contribution that is restricted in amount.

But the spender is able to use information the candidate has made publicly available. Id. It is not surprising that with direct communications subject to strict limits, the contact between candidate and ally has begun to move to this “public” exception, and the Twitter case may be someone’s idea of how to share information publicly but only in a narrow and technical sense, not for all the world to see.  It appears that this technique served primarily to transmit polling data, but there is no way of knowing, on the facts available, if this was “material” information that influenced spending decisions and triggered a violation of the coordination rules.

But an inescapable issue is the design of coordination rules that limit contacts between candidates and allies and drive these discussions underground. No one is especially clear about what amounts to a  “substantial” discussion or about the information that would be considered “material” to the formulation of ad strategy.  Under the law as it stands, a candidate can say to a spender that she “is being hammered on the gun issue,” and that is sufficient to establish coordination or justify an investigation into it—even though the statement is fairly general in nature and the judgment expressed is probably one that most observers following the campaign in the news media can arrive at independently.  And if the candidate makes the same statement to the press, rather than in direct conversation, the information retains the same value for the spender, but the coordination rules don’t apply.

In the case of the Twitter gambit,  will it work for the FEC to turn its energies to defining what is truly “public” in the Twitterverse? This does not seem all that promising. Maybe the time has come to reconsider the coordination rules.

Few believe that these rules serve their intended purpose, or that complicating them will make them better.  Legal standards hinging on the application of terms like “material” or “substantial” or “public” generate work for lawyers and costs for their clients, including the costs and burdens of investigations into what allies and candidates have said—or “signaled” —to each other.  The candidates and parties resent and resist the limits on communications with supporters and the lengths to which they have to go, lawyers in tow, to navigate treacherous legal terrain.  Reform advocates, apparently desperate for something that will work, have proposed that coordination not depend at all on contacts between a candidate and a group running an ad: it would be enough for the candidate to express private or public approval of an ad once it has begun to air. Everyone else will be mostly mystified by the abstruse rules and impenetrable disputes about enforcement, and they will have to strain to believe that much of anything is being accomplished–except inspiration for fresh strategies of evasion.

An alternative would be to liberalize the rules for candidate and party communications with allies, reducing the incentives for furtive legal strategies.  Revisions in the rules would identify clearly and concretely just those communications that are prohibited and leave ample room for other contacts and discussions between candidates and parties and their supporters.

For example, candidates and parties might be allowed to provide their polling data on request and require only that the transfer of value—the contribution by the candidate to the spender—be reported.  The rules could be amended to eliminate the “material information” or “substantial discussion” limits on communications and bar only requests or suggestions for specific expenditures or, in the case of ads, providing, editing or approving scripts.  Outside these kinds of prohibitions, the candidates, parties and groups could communicate more freely about campaign strategy as a whole under revised rules that more successfully and manageably distinguished protected political speech from specific arrangements for an in-kind contribution. And all of this would be conditioned on the actual independence of the allied organization—on the requirement that it was not organized by the candidate (or party), who also has no say in how it is run.

The FEC might more credibly enforce rules constructed in this fashion. It would focus regulation on discrete, concretely defined communications; it would avoid roaming, indefinite, and intrusive inquiries into all types of discussion about a campaign’s “plans, projects, activities, or needs” and their “materiality” in informing an organization’s spending. The agency could stay away from judgments that are better left to political actors and their consultants.

Making things simpler and clearer, and opening up the channels of communications between candidates, parties and their supporters, may save the regulatory system much expense, frustration and further loss of public confidence.  The campaign finance system has already had to suffer through a host of indignities over the years and it now faces a new one– a probe into the provenance of coded tweets.

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