‘Coordination’ Difficult to Prove

Posted September 16, 2005 at 6:32pm

The Federal Election Commission recently dismissed a complaint alleging that EMILY’s List had unlawfully coordinated its broadcast advertising buys in with the 2004 campaign of unsuccessful Florida Senate hopeful Betty Castor (D).

The basis on which the decision was made, however, may represent the FEC’s formalization of a method used by the parties and outside groups to comply with — or in the view of it critics, circumvent — contribution limits.

In its decision, the FEC determined that frequent contacts between EMILY’s List and the Castor committee did not constitute illegal “coordination,” even though Castor herself acknowledged the “great advice and support” EMILY’s List had given her campaign. Also cited in the complaint were allegations, acknowledged by the two defendants, that the two committees made frequent contacts, Castor’s campaign withdrew ads in locations where EMILY’s List ads aired and the latter hired one of Castor’s former campaign workers.

Nonetheless, the two entities convinced the FEC that the communication between them did not amount to coordination and their contacts did not qualify as coordinated expenditures in excess of contribution limits.

Campaign finance law prohibits an outside group from purchasing TV ads to benefit a particular candidate and communicate about the content or placement of those ads with the candidate if the cost of the ads exceeds the amount the group could legally donate to the candidate’s campaign.

What is interesting to many who follow campaign finance regulations is what the FEC’s reasoning for this decision says about the law itself or the FEC’s willingness or ability to enforce it.

Democracy 21 Executive Director Fred Wertheimer said the move puts “form over substance and illusion over reality.” The decision, he said, along with the regulations that led to it, is “just another way to license a circumvention of the law.”

Wertheimer’s group believes the commission has created many loopholes that have allowed candidates and nominally independent groups to operate outside of the contribution limits Congress set with the 2002 Bipartisan Campaign Reform Act and in previous legislation.

According to Wertheimer, this case is a classic example. EMILY’s List claimed, and the FEC accepted, that because the independent group internally created a suborganization, Florida Women Vote!, to engage in the developing of broadcast ads and the purchase of air time — and the employees of that second entity are barred “as a matter of policy” from interacting with federal candidates, political party committees or EMILY’s List employees who coordinate with such groups — no illegal coordination occurred.

This concept of “walling off” certain parts of an organization or entities within such organizations is not novel.

The national parties create such walls so as to simultaneously engage in “independent” and “coordinated” expenditures for and with the same candidate. The Supreme Court in McConnell vs. FEC struck down a part of BCRA that prohibited the parties from spending money in coordination with a candidate while making expenditures independent of the candidate’s campaign, as well. Drafters of BCRA thought such bifurcation was impossible in practice, as the relatively small community of political operatives would invariably find a way to tip one another off, deliberately or not, to how and where money was being spent.

Nonetheless, the parties engage in this practice by creating subgroups that ostensibly don’t communicate, even going so far as to create separate entrances for employees.

What’s new in the EMILY’s List ruling is that the FEC appears to have for the first time sanctified the practice of separating one part of an organization from another to engage in activities that would be illegal without such a wall.

“The remarkable newsworthy aspect is a formalization of the firewall concept by the FEC,” said Paul Ryan of the Campaign Legal Center. “The concept doesn’t exist either in the statute or in the commission’s regulations.”

Basically what the FEC said in this decision, according to Ryan, is if a group sets up such a firewall “and no one disputes it, we aren’t even going to investigate.”

Wertheimer further ridiculed the FEC’s decision.

“The idea that the group is not coordinating with the candidate because some people in the group” are theoretically barred from talking to other people in the group is “absurd,” Wertheimer said. “This turns EMILY’s List, in theory, into two separate groups, when in reality it’s one entity.”

Indeed, in its response to the FEC, EMILY’s List calls Women Vote! a “nationwide project” and, alternatively, “an initiative,” as opposed to a legally independent group.

The FEC general counsel’s office acknowledged as much in its report, describing Florida Women Vote! as a “project” of EMILY’s List and writing that it “appears not to be a separate legal entity.”

Outlining another perspective, former FEC Commissioner Brad Smith (R) said in an interview that the issues posed in this case are some of the toughest for the FEC because they wander into the realm of the unenforceable, or at the very least extremely difficult to investigate.

The prohibition on coordination is “one of the toughest issues in the law,” he said.

Smith, who is deeply suspicious of attempts to regulate campaign activity, abstained from the commission’s 5-0 vote for what he described as logistical reasons related to his imminent departure. At the end of his six-year term in August, Smith returned to teaching law at Capital University.

According to Smith, even though Castor acknowledged in public speeches having conversations with Martha McKenna, director of campaign services for EMILY’s List, the existence of those conversations alone do not necessarily meet the legal definition of coordination. In order to meet that standard, information “material” to how either committee planned to carry out its respective campaign would have had to be discussed, Smith explained.

As for the seemingly harmonious TV ad buys, Smith pointed out that, disclosure laws enacted as part of campaign finance reform require TV stations to make available detailed information on where and when groups are going to run ads. “It’s not really that hard to coordinate a campaign without coordinating it as a legal matter,” Smith said.

Given the level of contact between the two campaigns Smith said there was a “strong argument” to be made for at least opening an investigation, which the commission declined to do. But the FEC would face an enormous task in so doing, Smith said, in the sheer number and cost of such investigations, not to mention the intrusiveness and financial burden on the campaigns involved. And the incentive for rival campaigns and private citizens to initiate such complaints would be significant under those circumstances, he said.

“The alternative is to largely accept the denials of the groups involved,” Smith said. “Absent a real, good, clear smoking gun at the beginning of these cases,” the FEC is in a difficult situation, he said. “I don’t think many people really like the idea that we would turn essentially every campaign into a legal battle.”