California makes "independent expenditures" a little more independent

By The Sunlight Foundation

Hot off the heels of last month’s regulatory advance for transparency in California elections, the California Fair Political Practices Commission (FPPC) took action today to further improve the integrity of state campaign finance law.  By adopting a set of amendments to their regulations, the FPPC clarified the meaning of “coordination” between electoral candidates and groups making independent expenditures by adding examples of ways that candidates and these groups actually coordinate in real life. In so doing, the FPPC struck a blow for the rule of law—and for literalists everywhere, who like their words to have the same meaning whether they are inside or outside of law books.

At issue is the fact that candidates and independent expenditure groups face significantly different degrees of regulation. Candidates and political action committees are governed by regulations which limit the amount of money that a contributor can spend on a particular candidate.  Groups making “independent expenditures,” meanwhile, are not subject to the same spending limits so long as they do not coordinate their campaign spending with the candidate, since they must simply be viewed as unconnected private citizens speaking out of their own private, unconnected enthusiasm and not on behalf of the candidate. (I know I always express my private, spontaneous enthusiasms through TV ad campaigns.) Independent expenditure-making groups have become much more important since the 2010 Citizens United decision, when the Supreme Court legalized corporate spending on groups making independent expenditures, and the D.C. Circuit Court’s subsequent ruling in Speechnow.org v. FEC  which determined that individuals and corporations could make unlimited campaign-related contributions so long as they were for independent expenditures which were uncoordinated with a campaign. 

It may seem strange that determining whether groups and candidates are coordinating is a tricky issue, but as it turns out, the legal definition of “coordination” between candidates and independent expenditure groups has been famously vague and ineffective. As in most cases where common sense is not-so-common, this problem arises because this issue exists in a competitive political environment, where the ability of independent expenditure groups to serve as a conduit for unlimited individual contributions offers an extremely very attractive loophole for high-priced campaigns. Stephen Colbert and John Stewart mocked this inability of existing regulation to account for real coordination between candidates and groups making independent expenditures in a series they called “Not Coordinating!”

Happily, thanks to today’s work by the FPPC, Stephen and Jon would have to work a little harder to “not coordinate” if they were running for office in California. Amended Regulation 18225.7 now includes within the definition of coordination:

• The practice of sharing political consultants between the candidate and the outside group
• When the outside group is established or run by the candidate’s former staffers
• When the outside group is established or mainly funded by the candidate’s family members; and
• When the candidate participates in fundraising for the outside group.

It is somewhat shocking that it needs to be spelled out that candidates helping to raise funds for groups from which they are supposed to be entirely independent is a form of coordination, but that in itself tells you quite a bit about the state of campaign finance regulation today. In testimony before the FPPC, Paul Ryan of the Campaign Legal Center noted both that it was an important step to specify that joint fundraising constituted coordination, but also that so far just two other U.S. states, Minnesota and Connecticut, have managed to do so.

Today’s FPPC amendments also clarify that the Commission considers coordination to occur through sharing research (such as polls conducted by consultants), published material (like campaign video “B roll”), and messaging, even as shared indirectly through publication online. Since observers have noticed that coordination between candidates and IE groups has occurred through Facebook pages and anonymous Twitter accounts, it is critical that the Commission has now officially acknowledged that it can consider forms of indirect coordination such as these in its assessments of candidate activity.

Demonstrating their excellent commitment to public transparency, the FPPC streamed today’s hearing on YouTube, with the recorded event available here. (Start at 19:00 for Agenda Item 64, the consideration of these amendments.) While the Sunlight Foundation provided the FPPC with a letter in support of today’s FPPC action, we were so pleased to get to (virtually) watch representatives from the California League of Women Voters and the Campaign Legal Center testifying live at the hearing. Take a look and be inspired—and dream about how we can help spread California’s campaign finance improvements nationwide.

The Sunlight Foundation is a non-profit, nonpartisan organization that uses the power of the Internet to catalyze greater government openness and transparency, and provides new tools and resources for media and citizens, alike.