The Federal Election Commission has issued an advisory opinion making it much easier for federal candidates to offload their paid canvassing programs onto state PACs, nonprofits, and super PACs. While the campaign will need to pay for access to data collected, outside groups can now coordinate their canvassing activities—including the content of messages that expressly advocate for the election or defeat of federal candidates—with the candidates themselves.

In the request, a state political committee proposed hiring vendors to canvass potential voters before the election and distribute literature that would expressly advocate for the election or defeat of both state and federal candidates. The committee planned to “coordinate” its canvass by collaborating with federal candidates on aspects like strategy and messaging. Was this, requestors asked, an in-kind contribution to the federal candidates that a state committee like this one is prohibited from making? To this, the Commission answered no.

Under the Federal Election Campaign Act and Commission regulations, third-party payments coordinated with a federal candidate or their campaign are deemed to be in-kind contributions to those candidates under either of two circumstances. First there is the “coordinated communication” rule, which specifies when certain “public communications” will be considered a coordinated in-kind contribution (which will usually be excessive or impermissible). The second, broader “coordinated expenditure” rule deems any expenditure that is coordinated with a candidate an in-kind contribution. The question the FEC resolved was whether a communication that is not within the definition of a public communication can nonetheless be a coordinated expenditure.

Canvassing is not a public communication

In analyzing the requestor’s paid canvassing program, the Commission first determined it did not qualify as a public communication, defined by regulation as a communication “by means of any broadcast, cable, or satellite communication, newspaper, magazine, outdoor advertising facility, mass mailing, or telephone bank to the general public, or any other form of general public political advertising.” Despite the seeming breadth of that phrase, the Commission concluded that “general public political advertising” did not cover the proposed canvass. The agency explained that the political advertising envisioned by the definition of “public communication” involves paying a vendor or platform, such as a television broadcaster, newspaper, or ad network, to gain access to the platform’s audience. The medium is controlled, and the audience is established, by that platform. A canvass, in contrast, requires the sponsor to preselect the voters whose homes would be visited and the means of communication. The canvass vendors have no preexisting relationship with the target audience. Thus, the canvassing vendors would neither establish the audience nor control the forum. Furthermore, the Commission noted that as a traditional grassroots activity, door-to-door canvassing is fundamentally different from the types of mass media enumerated in the definition of “public communication.” As a result, the Commission concluded the proposed canvassing program is not a public communication and thus would not qualify as an in-kind contribution under the coordinated communication rule.

But canvassing is still a communication

After determining canvassing is not a “public communication,” the Commission also turned down the idea that the canvass was a coordinated in-kind contribution under the broader “coordinated expenditure” rule. The coordinated expenditure rule, the opinion reasoned, applies to “expenditures that are not made for communications but that are coordinated with a candidate, authorized committee, or political party committee.” The proposed canvassing program is still a type of communication, and expenditures related to the program are solely for producing and distributing communications. Therefore, although the canvass does not meet the definition of “public communication,” its costs are expenditures made for communications, and the broader coordination standard did not apply either. In effect, the Commission concluded that a paid canvassing program is a communication, just not a public one. As such, the proposed canvass is not covered by either coordination standard and was not an in-kind contribution to the candidates with whom it is coordinated.

While the canvassing is exempt from these rules, any data that results from the canvass may only be transferred to the campaign at fair market rates. Otherwise, the data would be an impermissible in-kind contribution.

An advisory opinion is presented in response to the specific facts put forward by the requestor, but the ruling nonetheless provides important signals as to how the Commission is likely to analyze similar circumstances. The facts of the opinion—involving a state PAC that raised unlimited individual contributions—suggest that other types of canvass sponsors, like corporations, super PACs, and LLCs, could also coordinate canvasses. The opinion also demonstrates the limits of the current definition of “public communication” and leaves open the possibility that other types of paid peer-to-peer communications might be outside its scope and able to be coordinated between candidates and outside spenders.

Accordingly, with this advisory opinion, the Commission is allowing some flame to jump the anti-coordination firewall, potentially lighting the way for candidates to shift more costs to outside groups, all while aligning on message and strategy. While this opinion offers a blueprint, organizations, including super PACs and 501(c)(4)s, should seek specific advice when coordinating any activities with federal candidates to avoid getting burned by the nuanced anti-coordination rules and to ensure they do not jeopardize the organization’s ability to engage in other independent expenditure activity in the future.