In its rulemaking on coordinated communications, the Federal Election Commission, to its credit, is deciding how to restore endorsement advertising to electoral politics.  You have seen the ads in previous years: a popular candidate appears in the ad of one less known, to tell the voters that the lesser known candidate is trustworthy and respectable—a common activity that BCRA never intended to discourage.  To understand just how much needs to be restored, in activity and logic, and to understand just how innocently the Commission headed down this siding, see here .

The Commission is leaning towards two solutions.  Commissioner Weintraub believes that endorsement ads featuring two or more candidates should not be a violation or create a payment obligation for the endorsing candidate unless the ad promotes or supports the endorsing candidate (or attacks or opposes his opponent).  Chairman Toner believes the endorsing candidate is entitled to even more protection, and would say so in the rulemaking.  Both Commissioners are correct:  Chairman Toner as to endorsement ads paid for by Federal candidates; Commissioner Weintraub as to endorsement ads paid for by non-Federal candidates or non-Federal party committees.

Communications featuring two candidates, typically but not necessarily of the same party, have never been considered corrupting.  The Commission’s pre-BCRA regulations on coordinated communications applied to communications “paid for by separate segregated funds, nonconnected committees, individuals, or any other person except candidates, authorized committees, and party committees.”  “General Public Political Communications Coordinated with Candidates and Party Committees”, 65 FR 76138, 76142 (Dec. 6, 2000).  Those regulations fell into disfavor with “reform” organizations but not because they failed to capture communications that feature more than one candidate.  When Congress passed BCRA it directed the Commission to redraft the regulations in several respects but did not ask the Commission to address advertising featuring more than one candidate.  Indeed, BCRA’s directive, like the Commission’s rulemaking that preceded it, addressed communications “paid for by persons other than candidates, authorized committees of candidates, and party committees.”  See BCRA Sections 214(c), Public Law 107-155, 116 Stat. 94 and 112, (Mar. 27, 2002).  Nonetheless, when the Commission rewrote the regulations, the innocent misapplication of a single word had the effect of regulating for the first time Federal-candidate to Federal-candidate advertising, without a directive from Congress or the Court.  The affirming opinion of Buckley prevented outsiders from extracting legislative quid pro quos from officeholders but did not affirm interference with the associational rights of the officeholders themselves.  The anti-circumvention rationales of Colorado Republican II or McConnell also failed to say that officeholder interaction is in any way corrupting.

The Commission, therefore, would be wise to follow Chairman Toner’s intuition and redraft the payment prong of its regulation at 11 CFR 109.21 to restore the substantive interpretation that has existed for decades: ads paid for by candidates, authorized committees or party committees do not support a violation under 11 CFR 109.21 no matter how thoroughly they are reviewed by the endorsing candidate.  This change would neither permit party committees to exceed section 441a(d) limits, nor allow candidates to use personal funds to run advertising in coordination with a colleague.  Ads paid for by party committees and coordinated with candidates in excess of the 2 U.S.C. 441a(d) limits would be captured by another section of the regulations, section 11 CFR 109.37.  Ads paid for by candidates in their personal capacity using personal funds and coordinated with another candidate would not be excused because of the statutory definition of candidate (which presumes an official capacity) and by operation of 2 U.S.C. sections 432(e)(1) and 441a(a)(7(A) (which say that a candidate’s money is his authorized committee’s money; it is official money).

So, what of ads paid with non-Federal funds — ads that note the endorsement of a federal candidate but are paid for by a State candidate or State party committee?  Well, here Commissioner Weintraub is right.  BCRA did not seek to establish then prevent corruption between officeholders, but sought instead to establish and prevent a corrupting of the Federal electoral process with non-Federal dollars.  BCRA prohibits State district or local candidates (and State, district or local party committees) from using non-Federal dollars for ads that promote, attack, support or oppose a Federal candidate.  BCRA does not prevent State candidates from using non-Federal funds for ads that feature candidates because its sponsors knew that BCRA could not do so constitutionally:  it would be a gross violation of political association to prevent a State candidate from advertising the fact she is endorsed by a Federal candidate with the very funds her State permits her to use in running a campaign.  BCRA, then, recognizes the continued viability of State candidate (or party) endorsement ads featuring Federal candidates as long as those ads promote the State candidate (or State party) and do not promote the Federal candidate or attack his opponent.

In addressing ads paid by State or local candidates or parties, the Commission would be wise to follow the advice of Commissioner Weintraub.  It should state in its rulemaking that ads paid with non-Federal funds by State, district or local candidates (or State, district or local party committees) that communicate an endorsement are not in-kind contributions to the Federal candidate making the endorsement—and not a prohibited-source violation—so long as the ads do not promote, attack, support or oppose the Federal candidate making the endorsement.

The Commission may believe it is easier to carve out an exemption for endorsement advertising on policy grounds, and leave all of this legal mumbo jumbo for another day.  But if history has proven anything it is that the “reformers” will sue in court to gain what that they couldn’t get in Congress; and that the courts are not, at this time, deferring to the Commission’s policy expertise.  It would be unfortunate if the Commission conceded its strongest arguments—that candidate-to-candidate advertising is not reached by FECA or BCRA and is not corrupting under existing case law—only to posit that sound public policy permits the Commission to exempt what the Commission just conceded would be illegal activity.  While the policy choice is a good one, it is this approach to the rulemaking that will tie the hands of the Commission’s litigators when the reformers again come suing.  Rather than take an approach that will require it to ask the court to defer only to its policy expertise, the Commission should take this opportunity to build solid legal arguments in addition to its policy prescriptions, and to start getting its litigators thinking about the legal arguments that support its actions.