In the wake of the 2012 elections, questions linger about what kinds of relationships are permissible between a candidate and an independent-expenditure only group (i.e., a Super PAC). In planning their activities, Super PACs may consider using a photo of the candidate from a campaign ad or website, or even approaching candidates and current officeholders to help with fundraising efforts. The rules governing these activities, which restrict soft money fundraising by federal candidates and officeholders and coordination between campaigns and outside groups, are complex, still evolving, and often unclear. Several recent examples teach us that a misstep can land a group in hot water, not just with federal regulators but in the media as well.

Fundraising

Can a candidate help a Super PAC with fundraising? What about one Member of Congress asking another Member to contribute? The latter issue is raised by a recently released report from the Office of Congressional Ethics (“OCE”). OCE found substantial reason to believe that a Congressman violated restrictions on soft money fundraising when he asked other Members of Congress to contribute to a Super PAC. The report found that the Congressman specifically solicited several larger contributions, including one for $25,000.

The House Ethics Committee announced it will continue this investigation, although the likelihood of sanctions is small. But the legal issues involved highlight an area of concern for Super PACs and the candidates they support. Under current law, a federal candidate or officeholder, or his or her agents, can solicit contributions up to applicable limits: for contributions to a PAC, that limit is $5,000 a year per person. In 2011, the Federal Election Commission (“FEC”) issued an advisory opinion addressing how this restriction affects candidates asking for contributions to Super PACs, which can accept unlimited individual and corporate contributions. The FEC found that the same limit of $5,000 applies. Thus, a candidate appearing at a Super PAC fundraiser must say that he or she is only asking for contributions up to the $5,000 limit. The opinion is not clear on whether the same holds true when the person being asked to contribute is a fellow candidate, as was the case here.

Candidate Appearances

Super PACs may be particularly interested in having candidates appear in their advertisements or using photos used by the candidate in their communications. However, this can lead the Super PAC into the complicated realm of coordination and in-kind contributions. When a communication is “coordinated” under the FEC’s rules, the cost of the ad is an in-kind contribution to the candidate from the PAC, subject to contribution limits and source restrictions. A Super PAC making an in-kind contribution would also forfeit its right to accept unlimited contributions from individuals or corporate contributions.

A recent complaint filed with the FEC demonstrates how candidate appearances can become a tricky issue. In January, several Members of Congress appeared in an online video created by a friendly Super PAC. The ad celebrated each Member’s electoral victory and featured the Members thanking the Super PAC for its involvement in several critical races. The complaint argues that these appearances constitute coordination and that the Super PAC thus gave an in-kind contribution to the campaigns of these Members.

The FEC regulations use a three-part test to determine whether an expenditure counts as a “coordinated communication” and thus an in-kind contribution to a candidate. The first part, the payment prong, requires someone other than the candidate to pay for the ad. Another part, the conduct prong, focuses on how the candidate and the PAC have acted – whether they are having “substantial discussions” or using the same vendors, for example. When the appearance of a candidate is planned and organized, there are reasons to suspect that there have been substantial discussions.

Yet there may still not be “coordination” because the final part of the test, the content prong, requires generally that the communication either “expressly advocate” the election or defeat of a candidate, republish campaign materials, or run during a certain time frame before an election. The content and timing of this Super PAC video does not clearly fit into any of these categories.

What the FEC will do with this complaint is unclear, as the Commissioners deadlocked on a similar request before the 2012 elections. In 2011, another Super PAC submitted a request asking whether it could produce ads featuring Members who were up for re-election reading from prepared scripts on particular issues. Three Commissioners agreed with the Super PAC that these ads were about issues, not about advocating for the candidates, and therefore did not meet the content requirement of the coordination test. The other three Commissioners disagreed, concluding that even if a communication does not meet all the requirements of the test for coordinated communications under FEC regulations, an expenditure may still be considered coordinated under the general statutory definition of coordination.

Republication of Candidate Materials

So can a Super PAC avoid this tangled web of coordinated communications by skipping a candidate appearance and just using an image or clip that is available to the public, like on a candidate’s web site or YouTube account? Again, clear guidance is lacking.

The FEC’s coordination rules generally allow independent groups to use “information material to the creation, production, or distribution of the communication” if it is “obtained from a publicly available source.” Thus, a conversation between the political director for a Super PAC and the campaign manager about why an ad about a candidate’s position on taxes would be helpful is considered coordination, but if the political director uses information derived from a news story about the candidate’s positions or plans, it is not coordination.

Some think this exemption allows Super PACs to use publicly available materials such as pictures, sound files, and video in their communications. Another part of the coordination rules, however, prohibits the “dissemination, distribution, or republication” of any “written, graphic, or other form of campaign materials.” The FEC has given varying guidance on how these rules relate to materials from candidate websites. In a 2006 enforcement decision, the FEC decided only to admonish an outside group for taking headshot photos from the website of a candidate and using them in mailers, concluding that the photos were of very little value. However, in 2012, the FEC deadlocked on an enforcement matter in which a Super PAC ran an ad using excerpts from campaign videos posted by a candidate on his official website. Three Commissioners found that the video footage was a major portion of the ad and that the lack of a clear exception in the republication rules for publicly available material meant that the ad was an in-kind contribution. The other three Commissioners concluded that only “several fleeting snippets” of the videos appeared in the ad and that using a small amount of material from a public source should not be considered republication.

Conclusions

Super PACs are subject to a high level of scrutiny in the media and at the FEC, even after the close of the first major election cycle in which they were active. Asking a candidate to appear in an ad or get involved in fundraising, or even just using an image from an official website, can raise challenging legal questions or risk drawing negative attention from the FEC and the public.  While some believe the post-Citizens United world is a version of the “Wild West,” there are still many unsettled issues to navigate.