A leaked email written by a senior Congressional aide became fodder for the politics section of the Washington Post last week, painting a picture of secret industry collusion with candidate campaigns on independent expenditures. The aide’s email, reportedly written to several of his boss’s campaign officials, explained that a prominent industry trade association was committed to an independent expenditure in support of the candidate, and wanted to be put in touch with the campaign.

The official reaction from both the trade association and the candidate’s campaign was that the aide was misinformed. According to the association, there was no such offer or commitment, although it had engaged in preliminary discussions about hosting an industry-sponsored PAC fundraiser for the candidate. The campaign explained that the aide “made inaccurate assumptions” about the type of assistance the industry group could provide the campaign, and that no communications took place between the campaign and the
association that would constitute coordination in violation of the federal campaign finance laws governing independent expenditures.

Perhaps by bringing the email to light the leaker sought and achieved some measure of damage control, allowing all involved to refute, publicly and contemporaneously, any inappropriate conduct. Even so, this kind of revelation can have damaging consequences. At the very least, there is plenty of embarrassment to go around. Worse, it could be a trigger for a government investigation.  The following lessons are worth keeping in mind:

  1. Assume that email will come to light. When your email ends up in the Washington Post, something has probably gone awry. But this should not be totally unexpected. Even without being leaked to a reporter, email is easily discoverable by government investigators. As this example highlights, don’t write anything in an email that you wouldn’t feel comfortable seeing in the newspaper.
  2. Talk to the right people and be clear in your communications. Under House and Senate Ethics rules, Congressional aides are not permitted to engage in campaign activities on official time or to use official resources for campaigning. While the ethics rules do permit aides to refer campaign-related inquiries to the campaign, any other campaign-related activities must be done voluntarily on their own time and using their own resources. In this example, the aide used his personal email account to communicate about the campaign-related matters. But that alone is not indicative of full compliance with the ethics rules. As a general rule of thumb, it is preferable to not discuss campaign matters with official staff. Take the time to identify the appropriate campaign officials and talk to them at the appropriate time. Above all, be clear in your communications with those officials about your interests and goals to avoid misunderstandings—don’t assume that they understand all of the nuances of the campaign finance laws.
  3. Know the rules on IE coordination. If your organization intends to engage in independent expenditure activities and doesn’t have a policy on coordination in place, now is the time to put one in place and provide training to everyone involved.