A long-awaited Federal Election Commission ruling could dramatically impact how the Supreme Court’s Citizens United decision affects the power of candidates to control campaign messages.
The FEC will set new rules this year to govern the coordination of communication between outside entities and candidates and parties. The proposed rulemaking was already in the works before the Citizens United decision, but this week the agency set a public hearing for March 2 and 3 and extended its public comment period on the issue to elicit comments addressing the impact of the high court’s decision.
“What the Supreme Court didn’t get into is how you determine whether the spending is truly independent and that depends on how the FEC writes its rules,” said Paul RyanPaul RyanVoter fraud allegations reignite squabble Mellman: First things first? Obama makes healthcare plea in handoff letter to Trump MORE, an FEC expert at the Campaign Legal Center.
In announcing legislative framework to counter the Supreme Court ruling earlier this week, Sen. Chuck SchumerCharles SchumerLive coverage: Trump budget chief faces two Senate panels McConnell to Dems: Work with us on GOP's 'formidable' challenges Democrats and the boycott of Trump's inauguration MORE (D-N.Y.) and Rep. Chris Van Hollen (D-Md.) said they would include language tightening coordination rules so corporations and unions cannot work with campaigns they favor to plan ads and other messages.
The legislative framework also would ban expenditures from corporations with a high percentage of foreign ownership, corporations that win federal contracts, as well as those that received TARP funds. Corporations and unions that spend money on political ads would be forced to disclose to the FEC, their shareholders and the Securities and Exchange Commission.
The Bipartisan Campaign Finance Reform Act of 2002, also known as McCain-Feingold, narrowed the definition of coordination and forced the FEC to re-write regulations governing the new law. In the nearly eight years since Congress passed the law, the courts have twice rejected FEC attempts at writing coordination rules, but the illegal regulations remain in effect today.
Right now, any political communication must pass a two-prong test in order for it to be considered illegally coordinated. First, the candidate and the outside entity must engage in conduct that amounts to actual interaction, and second, the content must not expressly advocate the election or defeat of a candidate up until 120 days before a presidential election and 90 days before a congressional election.
Outside of those pre-election windows, an outside group is free to work with a candidate or party on the writing of ad scripts, and which media markets and times to run them as long as those ads do not expressly advocate the election or defeat of a candidate.
The most recent court rejection of the rules came in 2008 when the D.C. Circuit Court found the express advocacy test to be inadequate as the sole guard against coordination outside those pre-election windows.
Advocates of stricter campaign finance laws have long wanted to broaden the definition of illegal coordination to apply if the ads promote, attack, support or oppose a candidate for president or Congress.
In the wake of the Citizens United decision, watchdogs argue, writing stricter coordination rules is essential to preventing corporations and unions from becoming extensions of individual campaigns.
“We’re going to see a flood of money so opportunities for corruption are rampant,” said U.S. PIRG spokeswoman Lisa Gilbert. “If a corporation or union is able to communicate with a candidate or party and plan ads what’s the difference from working for the campaign itself? We hope we can cut the money off at its source, but in the meantime firewalls are absolutely essential.”