“The rules of affiliation are just about as porous as they can be, and it amounts to a joke that there’s no coordination between these individual super PACs and the candidates,” said Rep. David E. Price (D-N.C.), who has sponsored legislation that would put stricter limits in place.
A close reading of FEC regulations reveals that campaigns can do more than just publicly signal their needs to independent groups, a practice that flourished in the 2014 midterms.
Operatives on both sides can talk to one another directly, as long as they do not discuss candidate strategy. According to an FEC rule, an independent group also can confer with a campaign until this fall about “issue ads” featuring a candidate. Some election-law lawyers think that a super PAC could share its entire paid media plan, as long as the candidate’s team does not respond.
A sweeping boundary was drawn by the Supreme Court in its seminal 1976Buckley v. Valeo decision, which said that political activity by outside groups must be done “totally independently” of candidates and parties. A similar standard was set in the 2002 McCain-Feingold Act, which said that independent expenditures cannot be made “in cooperation, consultation, or concert” with a candidate.
But in practice, defining coordination has not been easy. The FEC wrestled mightily with where to draw the lines, issuing regulations that were challenged repeatedly in the courts.
A set of FEC rules approved in 2010 prohibits a campaign from coordinating with an independent group on a paid communication. The agency laid out specific tests to determine whether a campaign has illegally shared internal strategy used to guide an independent group’s advertising.
But the rules do not ban coordination in general — much less conversations between each side.