California has existing regulations that define when expenditures by outside groups, including super PACs, are coordinated with candidates and become illegal contributions to those campaigns. These rules create a presumption of coordination under certain circumstances. Yesterday, the Fair Political Practices Commission (“FPPC”) approved revisions to its rules on independent expenditures and coordination that expand the situations where a presumption of coordination exists.
The changes adopted by the FPPC mirror activities that have been the subject of debate and controversy at the federal level. California, like many states, is moving forward with efforts to tighten the rules on super PAC expenditures.
The following list describes the primary ways that California changed its rules regarding “presumed coordination.” If the facts show that these situations exist, the candidate and outside groups have the burden of proving that illegal coordination did not occur.
- Republication. While republication of campaign materials was already presumed to be coordination in California, the revised rules add “video footage” to the list of campaign materials in this rule. This may be an attempt to prevent super PACs from using “b-roll” footage filmed by candidates, which has become a common practice.
- Fundraising. If a candidate solicits funds for or appears as a speaker at a fundraiser for a super PAC primarily formed to support that candidate, expenditures made by the super PAC are now presumed to be coordinated with the candidate. At the federal level, the Federal Election Commission has approved candidates appearing at super PAC fundraisers, with certain restrictions on how much they can solicit for the super PAC, without raising coordination concerns. California now takes a much more restrictive approach on fundraising activities by candidates and super PACs.
- Former Staff. There is now a presumption of coordination if the group making an expenditure is “established, run, or staffed in a leadership role” by an individual who previously worked for a candidate in a senior role during the current campaign. The “current campaign” extends from one year before the primary in which the candidate is running through the general election.
- Candidate’s Family. Like former staff, expenditures made by groups “established, run, staffed in a leadership role” by a member of the candidate’s immediate family are presumed to be coordinated with the candidate. In addition, and somewhat surprisingly, expenditures made by groups that are principally funded by a member of the candidate’s immediate family are presumed to be coordinated expenditures.
It is important to note that this is not the full scope of what amounts to coordination under California’s broad rules, only what the new rules add to the list of presumptions. Also, this activity does not mean that coordination necessarily exists, but if challenged, the candidate and outside group will need to spend their time and resources to prove that coordination did not occur.
As noted above, state regulators are steadily imposing stricter rules on super PACs than what is found at the federal level. It is important to know the state rules on coordination before engaging in activities in that state and to avoid the temptation to think that what is commonplace at the federal level will be permissible in state elections.