At the federal level, it is generally illegal for an outside group like a Super PAC or a 501(c)(4) organization to coordinate its independent expenditures with the candidate it supports.  The same is true in many states.  As we recently reported in our 2013 FEC Year in Review, however, the FEC did not act on any allegations of illegal coordinated activities in 2013.

The picture in some states, though, is much different.  The Montana Commissioner of Political Practices has brought complaints against at least nine state candidates for coordinating with an outside money group, even suggesting that one of the officials should be removed from office.  In Wisconsin, the Milwaukee County District Attorney is leading a “John Doe” probe into illegal coordination in that state’s 2011 and 2012 recall elections.  The California Fair Political Practices Commission settled a coordination case against a candidate for the first time in November.  Just this week, Arizona’s Attorney General was called to testify in an administrative hearing into whether his campaign coordinated with an outside group in the 2010 campaign.  Not only are the states actively pursuing coordination enforcement cases, but state regulators are willing to take political and legal risks to do so.  The Montana and Wisconsin investigations, for example, are highly controversial, and the targets in both states have sued the regulators.

This will likely be the enforcement environment for some time to come.  Turnover of two Commissioners at the FEC in late 2013 shows no sign of leading to a change in how outside groups are treated there.  In the states, meanwhile, investigations are ongoing and legislatures nationwide are considering new campaign finance reforms targeting outside money.  In this environment, candidates and outside spenders alike should understand that the inaction at the FEC is not mirrored at the state level.