Politico published an interesting article this morning providing a rare behind-the-scenes look at strategy sessions by House Democrats exploring ways to mitigate the conservative third party group advertising advantage. The article discloses that twice in the past week, rank-and-file House Democrats have complained loudly to Speaker Nancy Pelosi that they are “being crushed on the airwaves by outside groups, and they need her to do something about it.” Speaker Pelosi, who is the leader of the House Democractic caucus and the Democratic Congressional Campaign Committee, vowed action. According to the article:
In the meetings, according to people present, Democrats cited the nearly unmatched advantage Republicans are enjoying from conservative, third-party organizations. A sympathetic Pelosi vowed to pressure liberal groups to do more – and quickly.
Later in the article, Speaker Pelosi tried to reassure her colleagues again:
Pelosi acknowledged the problem and assured the Democrats that, while organized labor was helping with field operations, she was trying to get allied liberal groups to give House Democrats some air cover, too.
The frustration has affected Democratic staff as well:
And this Democratic aide fired a warning shot at liberal groups, suggesting that their absence from the campaign could have “long-term ramifications.”
“When these interest groups come to Democrats and say, ‘We need you to do this,’ a lot of Democrats who survived 2010 will say, ‘you weren’t there for us then.'”
The public response from the liberal groups is simple – they do not have the money because of donor fatigue and the enthusiasm gap.
So how is this a teaching moment concerning the FEC coordination rules? Simple, it demonstrates how every actor in the political process must remain mindful of the complex and counterintuitive FEC rules that apply to their actions.
Initially, the FEC coordination rules apply a three-part test to determine whether advertisements are coordinated with a federal candidate or political party committee. If coordinated, the cost of the advertisements result in a prohibited contribution to the federal candidate or party committee.
The first test is whether the advertisements are paid for by someone other than the federal candidate or party committee. The article discusses the need for outside liberal groups to pay for ads – check.
The second test is whether the content of the advertisement satisfies one of the content standards. Since we are fewer than three months before the election, the ads need to merely reference a federal candidate to satisfy this test. It would not be stretch to guess that the advertisements sponsored by the liberal groups would either praise the Democratic candidate or attack the Republican candidate. This test would appear to be satisfied if the liberal groups sponsor advertisements.
The third and final test is whether the interaction between the liberal outside groups and Speaker Pelosi, another federal candidate, or a political party official satisfies the conduct standard. One of the conduct standards that satisfies this test is the “request or suggestion” standard. Under the “request” standard, the communication is “created, produced or distributed at the request of a candidate, authorized committee, or political party committee.” 11 CFR sec. 109.21(d)(1). Alternatively, if the communication is “created, produced or distributed” at the suggestion of the third-party group and the candidate, authorized committee or political party assents to the suggestion, the standard is satisfied as well. Id. sec. 109.21(d)(2). If the Democrats communicate with the liberal outside groups requesting or suggesting that they sponsor advertisements defending vulnerable Democrats, this standard would appear to be satisfied as well.
Now, it’s important to remember that coordination charges are fact-intensive. There are many defenses to coordination charges, and some of them may be present here if the liberal groups begin to air advertisements defending Democrats. However, this story does illustrate the vast reach of the FEC coordination rules and how they affect every player in the political process.