What is it?
The California Fair Political Practices Commission—an agency that has consistently been a model of effective campaign finance enforcement and regulation—updated its coordination regulation to more effectively capture activity that was flying below the radar of the legal definition of coordination but was coordinated in any common-sense understanding of the word.
What activity is considered coordinated?
An expenditure by a group will be considered coordinated with a candidate if it is made at the request, suggestion, or direction of, or in cooperation, arrangement, consultation, concert or coordination with the candidate or if the candidate participated in making any decision or had any discussions with the creator, producer, or distributor of the communication, the person paying for that communication, regarding the content, timing, location, mode, intended audience, volume of distribution, frequency of placing the communication.
In addition, the regulation describes several scenarios under which the activities of an outside group will be presumed coordinated with a candidate. Those scenarios include:
- Fundraising: If a candidate solicits funds or appears as a speaker at a fundraiser for a group and the group then makes expenditures to benefit the candidate, the expenditures will be considered coordinated.
- Family members and former staff: If the group is run by the candidate’s family members or former high-level staff and the group makes expenditures benefitting the candidate, the expenditures will be considered coordinated. There is a 12-month “cooling-off” period for former staff. Twelve months after leaving employment with the candidate, a candidate’s former staff member may run a group supporting the candidate without the group’s expenditures being considered coordinated.
- Campaign needs: If the candidate provides information to the outside group about her campaign needs or plans, and the group makes expenditures accordingly, the expenditures will be considered coordinated.
- Common consultants: If the candidate and the outside group employ the same consultants providing professional services relating to campaign or fundraising strategy, and the group makes expenditures benefitting the candidate, the expenditures will be considered coordinated.
- Republication: If the outside group republishes or redistributes the candidate’s campaign communications, including video footage, the expenditure will be considered coordinated.
What is so different about California’s approach?
Rather than solely focusing on the prearrangement of specific expenditures—as many coordination laws have done traditionally—the California coordination regulations also focus on the relationship between the candidate and the outside spender and the back-and-forth communications inherent in such relationships. This is precisely the type of “wink and nod” coordination that has gone unregulated by most coordination laws. The California law presumes coordination in the scenarios described here. The candidate and outside group would, however, have an opportunity to demonstrate that the expenditures were in fact independent.