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=
December 22, 2011
=
FEC
Deadlocks on Super PAC Coordination with Candidates
=
It depends on what the meaning of
"coordination" is. This is what it came down to at an o=
pen
meeting earlier this month at the Federal Election Commission (&q=
uot;FEC"), where the six Commissioners fai=
led to
approve a draft advisory opinion addressing federal candidates'
coordination with federal Super PAC's on certain political
communications. The 3-3 impasse occurred on an advisory opinion
request submitted by American Crossroads, a conservative-leaning
Super PAC registered with the FEC and
associated with Karl Rove. The group sought clarification on the
federal candidate coordination issue about a recent advertisement=
was
paid for by the Nebraska Democratic Party which featured Democrat=
ic
Senator Ben Nelson. The advisory opinion request generated over 4=
00 comments
from individuals and interest groups as a result of comedian Step=
hen
Colbert's on-air focus on the matter in his satirical television
program, The Colbert Report.<=
/p>
American Crossroads asked the F=
EC
whether it could pay for issue-focused advertisements, similar to=
the
Nelson advertisement, featuring federal candidates who are involv=
ed
in their creation, but which do not satisfy the so-called
"content" prong of the FEC's
existing test for coordinated communications. Under the FEC's current regulations, an outside group=
's
political communication is deemed coordinated with a candidate, a=
nd
therefore constitutes an in-kind contribution to that candidate, =
if
the communication satisfies a three part test. That test requires
that a communication must be (1) paid for by an outside group; (2=
) it
must meet at least one "content" standard; and, (3) it =
must
meet at least one "conduct" standard.
=
The FEC's three Democrat=
ic
Commissioners voted for a draft advisory opinion that would
essentially ban federal candidate involvement with outside groups=
on
their political communications, even if those communications mere=
ly
constitute so-called issue advertisement devoid of express advoca=
cy.
In doing so, the Democratic Commissioners applied a definition of
"coordinated" that did not take into account the FEC's coordinated communications regulation=
s, and
the foregoing three-part test, that was adopted just last year. T=
he
three Republican Commissioners refused to adopt a draft that fail=
ed
to take into account those regulations.
=
The FEC's failure to iss=
ue
clear guidance on the Super PAC-federal candidate coordination is=
sue
will likely result in risk adverse candidates being hesitant to w=
ork
with outside groups in their political or issue communications
leading up to the 2012 elections. <=
/p>
New Disclaimer Rules
could be on the Horizon<=
/p>
for Internet Politi=
cal
Ads
=
How do you put a disclaimer on a tiny character-limi=
ted
Facebook or Google political ad? That is one of the questions the=
FEC is currently tackling in its most recen=
t rulemaking
on Internet Communications Disclaimers. The rulemaking stems from=
two
advisory opinion requests submitted by Google and Facebook from 2=
010
and 2011, respectively. <=
/p>
Generally, the FEC's cur=
rent
regulations require disclaimers on all "public
communications" that expressly advocate a federal candidate =
or
that solicit a contribution. There are exemptions for most intern=
et
communications, other than those placed on another person's websi=
te
for a fee, as well as for smaller items such as bumper stickers,
where including a disclaimer would not be practicable. However, w=
ith
the bombardment of political advertisements on various social med=
ia
outlets, these disclaimer regulations as they apply to smaller
advertisements are murky at best.<=
/p>
In 2010, Google asked the FEC
whether its character-limited text advertisements were exempt from
the disclaimer requirements due to their size and the
impracticability of including a disclaimer. In 2011, Facebook ask=
ed
for similar guidance related to its political ads that were paid =
for
by various federal candidates or committees and were limited to 1=
60
characters or less. The six Commissioners failed to agree on clear
guidance in both instances and instead resorted to the rulemaking
process in October of this year, with the hope it would result in=
a
concrete regulation.
=
It is unclear whether the FEC
will ultimately agree on a final internet communication regulation
applicable to smaller social media political advertisements. If t=
he
previous deadlocks on Google and Facebook's advisory opinion requ=
ests
is any indication, it is likely that this area of law will remain
undecided throughout most of the upcoming 2012 election season.
Consequently, the safest approach is for candidates and political
committees to include disclaimers on their internet advertisements
where it is practicable, and to include a link to a landing page =
that
includes the necessary disclaimers where an advertisement may be =
too
small to do so.
For further information regarding the topics discuss=
ed
in Clark Hill's Political Law December Update, please contact your
Clark Hill political law attorney.
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