The FEC has yet to publish, in clean form, its coordination rule amendments, and the Explanation and Justification remains to be issued.  The materials now available on the web enable the decisions it made to be pieced together, vote by vote, and one such stands out:  a major change to extend the prohibition on coordination in presidential campaigns.  This is the first significant regulatory change put in effect for the 2008 Presidential campaign.

      Under the coordination rules, one person paying for a "coordinated" public communication for the benefit of a candidate—coordinated with that candidate—has made a contribution, and whether the communication has been coordinated depends in part on content.  A key content rule applies its restrictions to any communication that "refers" to a Federal candidate within 120 days of an election.  Beyond 120 days—including the day after the election—this "reference" rule does not apply (though others might, such as any ad that expressly advocates the candidate’s election or defeat).  So outside this four-month period a "coordinated" ad with a candidate reference does not result in a regulated contribution to the candidate. 

      At its April 7 meeting, the Commission distinguished Presidential from other Federal elections in two ways.  First, it shortened the effective period for Senate and House campaigns to 90 days, maintaining in place the 120-day period for Presidential campaigns and for communications coordinated with political parties.  Second, the 120-day period for Presidential campaigns runs from the period of 120 days before a primary election through the date of the general election.  See here.  In other words, the 120-day period does not end on the date of the election in which the ad was run:  it continues through the date of the general election, which may be months away.

     Consider, then, the Iowa caucuses, scheduled (typically) for January, perhaps earlier rather than later in the month in 2008.  Under the change made by the FEC, ads runs in that state, which refer to a Presidential candidate, are subject to the coordination restriction from a date beginning some four months before, in 2007, through November, 2008.  If Citizens for Positive Campaigns run an ad denouncing the shortcomings of candidate X, this expanded rule would attach to its advertising about X in the State of Iowa for the balance of the election cycle.  It does not matter that X won or lost the caucuses; or that  X again appears in the State, or has any expectation of winning (or losing) it. 

     As noted, the FEC chose to adopt this expanded scope for Presidential and not for House and Senate campaigns.  The basis for this distinction is not entirely clear.  If, in theory, the "election" for purposes of the rule is the full election cycle, taking the primary and general elections together, then a Congressional election is no different from a Presidential.  But in Presidential campaigns, the span of months between primary and general election can stretch over a longer period (as in the case of the Iowan caucuses or the New Hampshire primary), which leaves a greater gap in statutory coverage than in Congressional elections.  And, of course, there is a difference in the amount of money spent on average for this kind of advertising:  the total spent in a Presidential campaign, nationwide, will be much larger.

      In any event, it is a distinction that the FEC has made.  The 2008 Presidential campaign is now, in regulatory terms, underway.

Bob Bauer