Democracy 21 and Campaign Legal Center File Comments at FEC Opposing Orwellian Request from Rove-Backed Group to Declare Ads Coordinated with Candidates to be Uncoordinated Ads

On October 28, 2011, American Crossroads, a federally registered political committee backed by Republican political operative Karl Rove, submitted an Advisory Opinion Request (AOR) to the FEC.

The AOR brazenly requested the Commission to find that ads by American Crossroads to promote candidates that would be “fully coordinated” with the candidates and would even have the candidates appear in the ads are not in fact “ads coordinated with the candidates.” In fact, such ads would be prohibited by the campaign finance laws.

Today, Democracy 21 and the Campaign Legal Center filed comments with the FEC opposing the AOR and labeling the American Crossroads claim absurd. According to the comments:

In short, a political committee seeks the Commission’s permission to “fully coordinate[]” ads with candidates, featuring those candidates, echoing the candidates’ campaign slogans, in ads that are “thematically similar” to the candidate’s own campaign ads, for the purpose of improving voters’ “perceptions” of those candidates in the 2012 election—without treating its payments for such ads as coordinated expenditures under federal law.  Just to recite this request is to demonstrate the absurdity of it.

Democracy 21 President Fred Wertheimer stated regarding the FEC comments filed today:

American Crossroads is attempting to pull a dangerous scam on the American people in urging the Orwellian position that a campaign ad that the organization admits would be “fully coordinated” with a candidate is not really an ad coordinated with a candidate at all.

It would make a mockery of the campaign finance laws to treat the proposed American Crossroads ads as anything other than “campaign ads coordinated with a candidate” within the meaning of the campaign finance laws.  It would make a mockery of multiple Supreme Court decisions that require such ads to be “independent” from the candidate to prevent corruption.

It would also make a mockery of two federal district court decisions and two D.C Circuit Court of Appeals decisions that invalidated previous FEC “coordination” regulations and that made clear that coordination with candidates on the kind of ads proposed by American Crossroads is prohibited by the campaign finance laws.

Under the campaign finance laws a campaign expenditure by an outside group that is coordinated with a candidate is treated as an in-kind contribution to the candidate and is subject to candidate contribution restrictions. These restrictions include the limits on contributions to a federal candidate of $2,500 per election from an individual and $5,000 per year from a PAC, such as American Crossroads, and the prohibition on corporate and labor union contributions to a federal candidate.

The approach proposed by American Crossroads would allow a candidate to obtain the direct benefit of unlimited individual, PAC, corporate and labor union contributions by permitting a candidate to coordinate with an outside spender on ads to promote the candidate. This would effectively give the candidate the ability to control the spending of contributions that have long been prohibited by Congress and upheld by the Supreme Court as necessary to prevent corruption and the appearance of corruption.

The FEC must reject the request submitted by American Crossroads.

There are enormous consequences for the American people of a wrong decision by the FEC.  Allowing American Crossroads to make coordinated expenditures but treat them as independent expenditures would for all practical purposes eviscerate the limits on contributions to candidates.  A wrong FEC decision would allow candidates working with PACs and other outside spenders to use corrupting contributions from individuals, PACs, corporations and labor unions to pay for their campaign ads.

Over the past eight years, Democracy 21 has been challenging the FEC for its improper interpretations of the law’s requirement that spending by outside groups cannot be coordinated with candidates.

During this period, the Democracy 21 legal team represented former Representatives Christopher Shays (R-CT) and Marty Meehan (D-MA) in winning two decisions in federal district court in Shays v. FEC I and Shays v. FEC III (2004 and 2007), and two decisions in the D.C. Court of Appeals (2005 and 2008), that struck down the FEC’s coordination rules as contrary to law. The Campaign Legal Center filed amicus briefs in support of the plaintiffs in these cases.

(See the Appendix attached to our filing today for a history of the FEC’s failure to properly implement the coordination provisions enacted in the Bipartisan Campaign Reform Act of 2002.)

On August 26, 2010, more than two years after the D.C. Circuit Court of Appeals struck down the FEC coordination rules for the second time, the FEC adopted its current coordination rules. These rules are still contrary to law and fail to comply with the Court of Appeals decision in 2008.

Nevertheless, even under the FEC’s current improper coordination regulations, our comments today demonstrate that the activities proposed by American Crossroads would still be illegal.

According to the comments filed today by Democracy 21 and the Campaign Legal Center:

American Crossroads explains: “The purpose of these advertisements . . . would be to improve the public’s perception of the featured Member of Congress in advance of the 2012 campaign season.”  Id.  American Crossroads explains further: “These advertisements would be fully coordinated with incumbent Members of Congress facing re-election in 2012 insofar as each Member would be consulted on the advertisement script and would then appear in the advertisement.”  AOR 2011-23 at 3 (emphasis added)

American Crossroads “concedes that each advertisement would: (1) be paid for by a person other than the candidate or the candidate’s authorized committee; and (2) satisfy one or more of the ‘request or suggestion,’ ‘material involvement,’ or ‘substantial discussion’ conduct standards[,]” but claims that “none of the ‘content’ standards set forth at 11 C.F.R. § 109.21(c) would be satisfied.”  AOR 2011-23 at 3-4.

This is incorrect.  The content standard at section 109.21(c)(5) is met by a “public communication . . . that is the functional equivalent of express advocacy.”  The rule states that “a communication is the functional equivalent of express advocacy if it is susceptible of no reasonable interpretation other than as an appeal to vote for or against a clearly identified Federal candidate.”  11 C.F.R. § 109.21(c)(5).  American Crossroads’ proposed ads clearly meet this standard—they are susceptible of no reasonable interpretation other than as an appeal to vote for the featured candidates with whom the ads are coordinated.

The comments filed today further explain that the D.C. Circuit Court of Appeals ruling requires the Commission’s regulation to “rationally separate” campaign-related ads from non-campaign ads for purposes of the coordination rules.

The comments argue that either the current regulation covers the American Crossroads ads as prohibited campaign ads or the current regulation fails to comply with the standard established by the court for what constitutes coordination and therefore the regulation is itself illegal and cannot be used by either the FEC or American Crossroads as a basis for claiming the ads are legal:

A conclusion by the Commission that American Crossroads’ proposed ads do not meet the “functional equivalent” content standard at section 109.21(c)(5) would “fl[y] in the face of common sense” and render correct the Shays III circuit court’s estimation regarding the Commission’s ignorance with respect to “both history and human nature.”  Shays III Appeal, 528 F.3d at 928.

Further, a conclusion by the Commission that American Crossroads’ proposed ads do not fall within the 2010 coordination rule—the Commission’s response to the Shays III court order to promulgate a rule that “rationally separates” election-related advocacy from other speech—would be proof positive that the 2010 coordination rule is invalid under Shays III.

The Campaign Legal Center took the lead in the preparation of the FEC comments.