The FEC worked through some delays and early disagreements to produce, by unanimous votes, new coordination rules.  These rules determine how paid public communications become "coordinated" with candidates and parties, which in turn controls the application of the financing restrictions of federal law.  By order of the court in Shays v. FEC, the FEC faced the question of whether it should modify the current rule governing public communications that refer to federal candidates or to parties within 120 days of an election.  Under the existing rule, public communications within this 120 period would be subject to the rule: any coordination of these communications would result in regulated "contributions." Communications outside the 120 day period would fall outside rule, allowing for full coordination of these communications with the candidate.  

      The FEC decided as follows:

       (1)  The 120-Day Period.  It was retained for Presidential candidates and for party committees, but shortened to 90 days for House and Senate candidates.

       (2) Coordination Achieved through "Substantial Discussion" --that is, beween the candidate  or party, and the person paying for the advertisement, when the person paying for a communication, which clearly identifies the federal candidate, uses material information gained throught this discussion.  The rule makes clear that this rule does not apply where the information "material" to the creation, production or distribution of the advertisement was "obtained from a publicly available source."  In other words, the mere existence of the discussion is not enough: it is only "substantial," and thus subject to the rule, if the information material to the communication was provided in this way, and not through public sources.

      (3) Common Vendors and Former Employees.  Under the current rules, a person paying for a communication may be deemed to have coordinated it with the candidate appearing in the communication if it relied on material information provided by a former employee or a common vendor of a candidate or party.  The FEC amended the rule so that the rule applies only 1) to vendors who have worked within the previous 120 days for the candidate or a party identified in the communication , and 2) to former employees or federal contractors who have worked within the previous 120 days for the candidate or party identified in the communication.  This 120-day threshold for the application of the rule is a significant change from the prior rule, which applied to any such relationships with the candidate or party during the same election cycle when the communications occurred.

     (4)  Endorsements and Solicitations for the Benefit of Another Candidate.  The FEC exempted from the coordination rules an endorsement provided by one federal candidate to another, or to a nonfederal candidate. The exemption requires that the communication not include any material supporting or promoting the endorsing candidate: all the good press is to run in the direction of the endorsee.  And the communication may also not sneak in material attacking or opposing the endorsing candidate's opponent. 

      The Commission also provided for an exemption for certain solicitations that candidates may conduct for tax-exempt organizations and political party committees--once again with the provisio that it cannot include material promoting the endorsing candidate or attacking her opponent.  Some Commissioners anticipated that other organizations may well seek, by Advisory Opinion Request, to broaden this allowance to authorize federal candidate solicitations for other organizations, such as PACs. 

       (5)  "Firewalls."  The FEC clarified by rule that organizations could establish "firewalls" to avoid having candidate information, material from a communication, pass from one part of an organization to another where it would be material to a communication in which the candidate might appear.  Such a firewall would allow an organization to maintain contacts with candidates separate from the operation of an "independent expenditure" division dependent on running ads without the use of "material" information provided by candidates (or parties) or their agents.  It would also assist consultants, such as media consultants or pollsters, in serving, simultaneously, both candidates and organizations supporting those same candidates with independent expenditures. The FEC made clear that the firewall would have to be described and made available to affected employees and consultants in a written policy, and that it was not an absolute defense if there was "specific information" that material information had permeated the "firewall."

       (6) "In Whole or in Part."  The rules apply to any funds supplied by a person, in whole or in part, for a "coordinated" communication that clearly identifies a federal candidate or a political party committee.

       The FEC did not release an "explanation and justification" of the new rules, which will come later. 

Bob Bauer and Donna Lovecchio