Six Degrees of Coordination
The most speech-threatening provision of Shays-Meehan.

By Stephen M. Hoersting, executive assistant to Commissioner Bradley A. Smith of the Federal Election Commission.
February 12, 2002 8:40 a.m.

hough the House will be taking up campaign-finance reforms this week, there is still time to discuss the most speech-threatening provision in the pending legislation. Contrary to general belief, it is not the ban on political advertising 60 days before an election. A similar ban (but which applied only to the day before an election) was struck down as unconstitutional by the U.S. Supreme Court in 1966, and the ban now being contemplated would almost certainly be struck down as well. The provision that would actually be most damaging to grassroots activity and political debate — and which may escape the wrath of the courts — is the tighter ban on citizen activity coordinated with candidates.

The Shays-Meehan bill (and its Senate companion, McCain-Feingold) would amend the Federal Election Campaign Act, which regulates "expenditures" made for the purpose of influencing federal elections and "contributions" to candidates for federal office. Because the act operates at the core of First Amendment activity, the Supreme Court held over 25 years ago that, where speech is implicated, the act can reach only those expenditures for advertising that expressly advocate the election or defeat of a clearly identified candidate. And while express advocacy expenditures that are made independently of candidates must be reported to the public, they cannot be limited. Dollar limits on contributions to candidates are permissible, however, because they do not directly infringe upon the speech of the spender, leaving open alternate avenues for the advocacy of political issues. Expenditures placed in cooperation or in concert with a candidate — so-called "coordinated expenditures" — are also treated as contributions under the act and can be subject to dollar limits.

For the past seven years, the election bar has been debating whether coordinated spending for speech must also be limited to express advocacy. Many say no, that it is the fact of coordination alone that places the activity under the act; opponents counter that advocacy groups are in need of a well-defined safe harbor from investigations into coordinated activity no less than from investigations into whether their issue discussion is secretly "intended" to benefit a candidate. Otherwise, debate on public issues cannot be "uninhibited, robust and wide open," as the First Amendment requires.

But the Shays-Meehan and McCain-Feingold bills sweep aside the entire debate, by changing the act's definition of "contribution" to include "any coordinated expenditure or other disbursement made by any person in connection with a candidate's election, regardless of whether the expenditure or disbursement is for a communication that contains express advocacy."

Without an express-advocacy tripwire, however, groups anywhere in the country that make a "disbursement" for phone banks, polls, literature drops, issue ads, e-mail, voter guides, and other activity during elections will be left to wonder how to insulate themselves from investigation. The courts have long recognized that the mere threat of investigation will cause many groups to stay silent. In 1945, the Supreme Court explained the general proposition that a "speaker in such circumstances could avoid words" such as "vote for Jones," "elect Jones," or "defeat Smith." But where a standard of legality is vague, the "effort to observe it could not be free speech, free press, or free assembly, in any sense of free advocacy of principle or cause."

This kind of pervasive uncertainty is what the James Madison Center's James Bopp Jr. calls the "coordination trap" awaiting all issue advocates once Shays-Meehan becomes law. It arises inexorably from what the ACLU's Joel Gora foresees as a "coordination witch hunt." Sophisticated political players now include in their arsenals lawsuits and routine complaints to the Federal Election Commission (FEC), which are often the quickest and least expensive ways to tarnish an opponent's image, take him off message, or make him divert valuable resources to defending himself. If Shays-Meehan's coordination provisions are signed into law, it will take the political elite about three minutes to deduce that all complaints of coordinated activity between citizen and campaign must lead to a full-blown investigation by the FEC — an investigation to which the citizen-respondent can offer no affirmative defense. For an innocent respondent, the express-advocacy standard would serve as a legal defense — as proof that the ad is protected as a matter of law, and proof that would bring the investigation quickly to a close. But without it, any other defense would amount to little more than a self-serving, factual assertion ("I don't know any congressmen"), and the FEC would be obliged to take all actions necessary to determine who has the better version of the facts, complainant or respondent. Any political operative worth his salt would tell party chairmen around the country to be on the lookout for grassroots groups with dissonant messages. Once those county chairs or other subordinates notice an advertiser gaining a head of steam, getting noticed, or gaining traction, they will know to file an allegation of coordination. Provided the complaint is reasonably well crafted (a relatively easy task), the FEC will have no choice but to open an investigation.

Because the Supreme Court has held that contribution limits are constitutional, there is no guarantee that, in reviewing McCain-Feingold, the Court would not for the first time allow issue advocacy to be regulated — as an in-kind contribution — even though issue advocacy, unlike money contributions, always involves direct speech of the spender.

By changing the act's definition of "contribution," both bills ensure that respondents wouldn't just be facing a potential violation of the act's contribution limits. There would also be the risk that the FEC would determine that a group's "major purpose" was coordinated-activity, making the group itself a "political committee," subject — now and in the future — to the act's full panoply of registration and reporting requirements. This would prove an undue hardship to any average issue organization (and is largely the reason for the Supreme Court's decision, in 1986, to exempt from the act much activity of nonprofit corporations). Moreover, because roughly 50 percent of all candidates are incumbent officeholders whom citizens have a right to petition for a redress of grievances, the legislation would often present issue advocates with the Hobson's choice of either renouncing their right to petition the government, in order to save their right to speak about issues — or vice versa.

In any event, it now takes the average advocacy group that has been charged with coordinating its activities about three to four years to prove its innocence before the FEC. One group was cleared of an FEC finding by a federal court after six years, 84 depositions, and approximately 100,000 pages of discovery documents. And proving one's innocence will only get tougher under Shays-Meehan and McCain-Feingold. Both bills not only regulate issue advocacy, but go further by repealing the current standard for proving illegal coordination and ordering the FEC to create a new one. The current standard requires proof of "substantial discussion or negotiation" between the candidate and citizen. Both new bills, however, dictate that the new "regulation shall not require collaboration or agreement to establish coordination." In fact, the bills require nothing more than evidence of a "general understanding" between citizen and candidate, predicated on factors such as "employment history," use of a "common vendor," and other considerations. If a group and candidate hire the same consultant, that fact alone may be enough to support a charge of coordination. If a former staffer of a pro-environment candidate goes to work for, say, the Sierra Club, then anything that organization does may be deemed coordinated activity.

The McCain-Feingold bill would also tack on one more level of confusion, by defining an "independent" expenditure as an expenditure that is not coordinated with the candidate or his agent and one that is not coordinated with someone who himself has engaged in coordinated activity with the candidate or his agent. It's not clear how a would-be speaker walled off from a campaign could ever be sure that everyone he speaks with has not spoken to a member of that campaign. What is clear is that if any two persons in the world are separated by just six other people — an idea that's been called "six degrees of separation" — we can expect this legislation to increase, dramatically, the number of citizens hauled before the FEC on allegations of coordinated activity.

But if incumbent protection is a strong motivator for passing ever more campaign-finance regulation, perhaps the potential inconvenience to incumbents may be enough to kill it. Candidates cannot be held liable for coordinated activity, but they can be held liable for failing to report contributions. And if the FEC determines that the candidate or a member of his campaign knowingly and willfully failed to report a contribution taking the form of coordinated activity, they may be subject to criminal liability. What's more, every investigation of coordination between citizens and candidates requires the FEC to determine what the candidate and his agents knew and when they knew it. Now would be a good time for each of the 435 members seeking reelection in the House to ask himself how much in time and resources he wants to spend answering questions at the FEC.