Campaign coordination is currently a hot topic in election law because many presidential candidates have associated with independent expenditure committees, widely known as “super PACs.” Candidate campaign committees are limited to how much money they can raise per contributor and are prohibited from accepting corporate and union funds while, following the Citizens United and SpeechNow decisions, super PACs may raise unlimited funds from most individuals, corporations and unions. Federal Election Commission (FEC) regulations delineate the amount of coordination that can occur between campaigns and PACs (or other outside groups), so that candidates cannot circumvent contribution limits and run de facto campaigns on the side.
Nevertheless, proponents of campaign finance regulation have objected—to the FEC and more often within the press—that numerous activities between candidates and super PACs this election cycle call for coordination penalties, or at least extensive investigations into the interactions between campaigns and super PACs. Others believe the coordination regulations should be amended to unequivocally prohibit certain activities, and today is the final day to submit comments to the FEC regarding a rulemaking petition that asks the agency to enact such prohibitions.
In comments submitted on behalf of the Pillar of Law Institute, I endeavor to remind the FEC (two commissioners in particular) that the case law specifically addressing coordination regulation is clear: coordination regulations cannot prohibit too much interaction and association between campaigns and outside groups without violating the First Amendment rights of free speech and association. Although campaign regulation proponents condemn coordination as a threat to our democracy, much of the activities their proposals would prohibit are actually integral to preserving a healthy republic. The current regulations prohibit only very specific instances of coordination and thus allow super PACs and other groups that operate outside of campaigns to have significant breathing room to advocate on behalf of issues and elections alike.
Campaign finance precedent aside, the proposed rulemaking calls for regulations that would presume guilt-by-association, methods long rejected by the Supreme Court in the context of the First Amendment. I conclude that it is not necessary for the FEC to revisit the coordination regulations at this time, and that future rulemakings must begin on more serious footing than the constitutionally dubious proposals put forth in the current rulemaking petition.