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.

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Photo of Derek Lawlor Derek Lawlor

Derek Lawlor is of counsel in the firm’s Election and Political Law Practice Group. Derek advises corporations, nonprofit organizations, and trade associations on compliance with federal and state lobbying, campaign finance, and government ethics laws.

Clients regularly rely on Derek to assist with…

Derek Lawlor is of counsel in the firm’s Election and Political Law Practice Group. Derek advises corporations, nonprofit organizations, and trade associations on compliance with federal and state lobbying, campaign finance, and government ethics laws.

Clients regularly rely on Derek to assist with their complex questions related to activities and projects that implicate all of these laws. Derek advises federal and state candidates and super PACs on campaign finance and disclosure issues. Derek also represents clients in government investigations and inquiries conducted by the Federal Election Commission, Office of Congressional Ethics, and Congressional Committees and Commissions.

Derek’s representation of clients covers the full range of important political law issues that they face, including:

  • Advising clients on their registration and reporting obligations under the federal Lobbying Disclosure Act, as well as state and local lobbying laws, including helping client organizations evaluate the core questions that arise in this space:
    • Has the organization or any of its employees triggered lobbying registration requirements?
    • What lobbying income, expenditures, issues, or contacts need to be disclosed on lobbying reports?
    • Does procurement or sales activity directed at governmental entities trigger lobbying registration in a particular jurisdiction?
    • What are the best practices for designing a lobbying compliance program?
  • Assisting corporations and trade associations with the establishment and operation of connected PACs, which frequently entails evaluating the following questions:
    • What steps does the organization need to take to start up and register a connected PAC?
    • What are the ongoing reporting requirements under the Federal Election Campaign Act (“FECA”) or state campaign finance laws?
    • Which employees can the organization solicit and what are the rules on conducting a solicitation campaign?
    • What are the limits on making contributions to federal, state, or local candidates, party committees, or other political committees?
    • What are the best practices for designing a PAC compliance program?
  • Evaluating whether a client’s proposed activities might trigger registration under the Foreign Agents Registration Act (“FARA”), and if so, advising on registration and ongoing reporting obligations;
  • Advising federal and state candidates, super PACs, and other political committees on compliance with FECA, FEC regulations and reporting requirements, state campaign finance laws, rules on disclaimers placed on communications, and other political law compliance topics;
  • Counseling individuals who are entering government service, including Senate-confirmed positions, on the various financial disclosure requirements, conflicts of interest considerations, and other ethics law issues they may face;
  • Helping clients establish politically active or policy-focused nonprofit organizations, and proving ongoing support related to tax and political law issues that might arise from their activities; and
  • Advising corporations, nonprofits, and individuals on their proposed donations to candidates, political committees, and other politically active outside groups.

Derek is a Professorial Lecturer in Law at the George Washington University Law School.

Prior to receiving his law degree, Derek worked in the Office of General Counsel at the U.S. House of Representatives.