California Adopts Strong New Anti-Coordination Rules; Similar Approach Used in Democracy 21 Model Bill
The California Fair Political Practices Commission (FPPC) last week adopted strong new rules to prevent coordination between outside spending groups and the California candidates they are supporting.
The new FPPC rules are designed to protect the integrity of candidate contribution limits in the wake of the Supreme Court’s disastrous Citizens United decision.
Coordination between candidates and outside spending groups at the federal level is being widely used to bypass and eviscerate candidate contribution limits adopted by Congress and upheld by the Supreme Court to prevent corruption and the appearance of corruption.
Thus, in the 2016 presidential campaign, individual-candidate Super PACs, supporting almost all of the presidential candidates, are being used to massively circumvent the contribution limit for presidential candidates of $2,700 per donor. These Super PACs support a single candidate, are generally run by close associates of that candidate and raise and spend unlimited contributions to directly support the candidate.
Under the Citizens United decision, and a subsequent D.C. Circuit Court of Appeals decision explicitly based on Citizens United, Super PACs and other outside spending groups can make unlimited expenditures of unlimited contributions, provided the expenditures are made independent of the candidates being supported. The Supreme Court left the issue of defining what constitutes “coordination” to Congress and the states.
The widespread problem at the federal level of using outside spending groups to circumvent candidate contribution limits is also a growing problem at the state level. That problem is addressed in the new FPPC anti-coordination rules.
According to Jodi Remke, Chair of the FPPC, “When you have so much money pouring into these elections through these (independent expenditures), you’re going to start seeing different behavior. Our goal is that contribution limits here have a purpose and are significant.”
According to the Sacramento Bee:
The regulation effectively shifts the burden of proof in cases of suspected coordination from the government to the candidate or outside spending committee. It puts them on notice if former aides or immediate family members go to work for an outside spending group involved in a candidate’s race, for instance, or a candidate raises money for an outside group. It also would restrict the sharing of candidate-produced video and data.
The new rules adopted by the FPPC are similar to an approach used in a model bill prepared by Democracy 21. The principal difference between the California rules and the Democracy 21 model bill is that the FPPC rules use specific indicia to create a presumption of coordination between an outside spending group and a candidate, while the Democracy 21 model bill treats similar indicia as conclusively establishing such coordination.
The Democracy 21 model bill defines coordination between a candidate and a Super PAC (or other outside spending group) to include factors that clearly establish close relationships and ties between the candidate and the Super PAC. Thus, the model bill defines a Super PAC to be coordinated with a candidate when:
– the Super PAC is directly or indirectly established by or at the request or suggestion of, or with the encouragement of, or with the approval of, the candidate or the agents of the candidate it supports;
– the candidate or the candidate’s agents solicit funds or engage in other fundraising activity for the Super PAC, including by providing or sharing fundraising lists with the Super PAC;
– the Super PAC is established, directed or managed by former political, media or fundraising advisers or consultants to the candidate or entities controlled by the candidate;
– the Super PAC has had communications with the family of the candidate about the candidate’s campaign; or,
– the Super PAC has retained the professional services of any person who during the two-year period prior to the expenditure has provided or is providing professional services relating to the campaign to the candidate or the candidate’s campaign.
Under the Democracy 21 model bill, once coordination with a candidate is established under any one of these indicia, all future expenditures by the outside spending group supporting that candidate are treated as coordinated with the candidate and are subject to the limits that exist on contributions to the candidate.
The Democracy 21 model bill is similar to legislation introduced in Congress by Representatives David Price and Chris Van Hollen (H.R. 425) and Senator Pat Leahy (S. 1838). Democracy 21 participated in drafting this legislation.
