This morning I posted on the MAYDAY Reddit a post with the title "Doing it the old fashioned way." The text of my post was:
I would be interested in your comments on "Doing it the old fashioned way," as described in this blog entry http://maydaysupporters.blogspot.com/2015/04/doing-it-old-fashioned-way.html.
MAYDAY deleted my posting. I was not provided with an explanation of the deletion. Until I am informed otherwise, I am assuming the deletion was made by reason of the "coordination" rules under Federal campaign finance law as applicable to "independent expenditures" by Super PACS.
Those "coordination" rules potentially impose significant limitations on how MAYDAY will be able to pursue its goal of electing a reform minded Congress by 2016.
MAYDAY supporters should be aware of those limitations so that they know how MAYDAY is limited in what MAYDAY does, and so supporters can make decisions about whether there are things they (or others) can do (which MAYDAY believes it cannot do) and decide whether they should do such things.
MAYDAY has not publicly articulated much about the limitations MAYDAY considers itself to be under by reason of the coordination rules.
I believe MAYDAY made a decision for 2014 that Congressional candidates would not be allowed to post on the MAYDAY website and Facebook pages.
I do not know whether this decision is set in concrete for MAYDAY for 2016, and whether Congressional candidates will continue to be banned from posting on the MAYDAY website and Facebook pages.
Such a ban on Congressional candidates would be detrimental for MAYDAY's plan. It will curtail the ability of Congressional candidates to inform MAYDAY supporters about the candidates' positions on campaign finance reform and curtail engagement by Congressional candidates with MAYDAY supporters about the same. The ban will limit Congressional candidates who back MAYDAY in learning about one another and in having discussions about their respective campaigns and their tactics and strategies.
One of the reasons I started this blog in 2014 was to create an alternative venue for the foregoing activities to take place if the activities could not take place on MAYDAY venues. See the entry
Engaging with Congressional candidates.
Any venue set up as an alternative to MAYDAY's venues would need to be evaluated under the Federal campaign finance law. Below I have indicated some provisions of Federal campaign finance law, which are described in this
FEC Candidate Guide. Please note the favored treatment that is given to Internet activity. I think an alternative venue to MAYDAY's venues is a realistic possibility.
Also, consider the posting that MAYDAY apparently believed it needed to delete by reason of the "coordination rules. I am about the only person posting on the MAYDAY Reddit who is strenuously urging messaging to persons outside of MAYDAY to tell them about MAYDAY and telling about the messaging I have been doing and the results I have been getting.
I don't know what is going to be in the platform MAYDAY announces on May 1st to support the biggest citizen lobbying campaign that MAYDAY possibly can, and maybe there will be a lot in that platform. Thus far, MAYDAY has chosen to make no comment or give any encouragement regarding ideas that I and others have put forth on Reddit and elsewhere.
All of what I am doing is in the public domain, and MAYDAY is aware of it is in the public domain. Instead of just deleting things that MAYDAY thinks may violate the coordination rules, MAYDAY should be proactive in searching out ideas, and writing up the ideas itself on its website and Facebook pages.
CANDIDATE GUIDE
The Glossary in Appendix H of the Guide has these definitions to consider.
Candidate – An individual seeking nomination
for election, or election, to federal office becomes
a candidate when he or she (or agents
acting on his or her behalf) raise contributions
that exceed $5,000 or make expenditures that
exceed $5,000.
Contribution – A gift, subscription, loan,
advance or deposit of money or anything of
value given to influence a federal election; or
the payment by any person of compensation
for the personal services of another person if
those services are rendered without charge
to a political committee for any purpose. 100.52(a) and 100.54. See Chapter 3, “Understanding
Contributions.”
Coordinated Communication – A communication
that satisfies a three pronged test:
• The communication must be paid for by a
person other than a federal candidate, authorized
committee, or a political party committee,
or any agents of the aforementioned
entities with whom the communication is
coordinated. (See, “Party Coordinated Communication,”
below);
• One or more of the five content standards
set forth in 109.21(c) must be satisfied; and
• One or more of the five conduct standards
set forth in 109.21(d) must be satisfied.
• A payment for a communication satisfying all
three prongs is an in-kind contribution to the
candidate or political party committee with
which it was coordinated. 109.21. See Appendix
D, Section 2.
Electioneering Communication – Any
broadcast, cable or satellite communication
that (1) refers to a clearly identified candidate
for federal office; (2) is publicly distributed
within certain time periods before an election
and (3) is targeted to the relevant electorate.
100.29. See Appendix D.
Expenditure – A purchase, payment, distribution,
loan, advance, deposit, or gift of money
or anything of value made for the purpose of
influencing a federal election. A written agreement
to make an expenditure is also considered
an expenditure. 100.111 and 100.112. See
Chapter 8.
Independent Expenditure – An expenditure
for a communication that expressly advocates
the election or defeat of a clearly identified
candidate and that is not made in cooperation,
consultation or concert with, or at the request
or suggestion of, any candidate, or his or her
authorized committees or agents, or a political
party committee or its agents. 100.16. See
Appendix D.
Mass Mailing – A mailing by U.S. mail or facsimile
of more than 500 pieces of mail matter
of an identical or substantially similar nature
within any 30-day period. This does not include
electronic mail or other Internet communications.
100.27. See Public Communication.
Public Communication – A communication
by means of any broadcast, cable or satellite
communication, newspaper, magazine, outdoor
advertising facility, mass mailing or telephone
bank to the general public, or any other form
of general public political advertising. The term
general public political advertising does not include
communications made over the Internet,
except for communications placed for a fee on
another person’s website. 100.26, 100.27 (definition
of mass mailing) and 100.28 (definition of
telephone bank).
There are these substantive provisions in the Guide:
Definition
Goods or services offered free or at less than
the usual charge result in an in-kind contribution.
Similarly, when a person pays for services on
the committee’s behalf, the payment is an in-kind
contribution. 100.52(d)(1) and 100.111(e)(1). An
expenditure made by any person in cooperation,
consultation or concert with, or at the request or
suggestion of, a candidate’s campaign is also considered
an in-kind contribution to the candidate.
109.20. See Appendix D, “Communications.”
Coordinated Communications
If a committee, group or individual pays for a communication
that is coordinated with a campaign or
a candidate, the communication may result in an
in-kind contribution to the campaign committee.
For more information on determining whether a
communication is coordinated, see Appendix D.
Personal Services
An individual may volunteer personal services to a
campaign without making a contribution as long as
the individual is not compensated by anyone for the
services. 100.74. Volunteer activity is not reportable.
Internet Volunteer Activity
General Exception
An uncompensated individual or group of uncompensated
individuals may engage in certain
voluntary Internet activities for the purpose of
influencing a federal election without restriction.
These exempted Internet activities would not result
in a contribution or an expenditure under the Act
and would not trigger any registration or reporting
requirements with the FEC. This exemption applies
to individuals acting with or without the knowledge
or consent of a campaign or a political party
committee. 100.94 and 100.155. Exempted Internet
activities include, but are not limited to, sending or
forwarding electronic mail, providing a hyperlink to
a website, creating, maintaining or hosting a website
and paying a nominal fee for the use of a website.
11. INDEPENDENT EXPENDITURES
An independent expenditure is an expenditure
for a communication that expressly advocates the
election or defeat of a clearly identified candidate
and which is not made in coordination with any
candidate or his or her campaign or political party.
100.16, 109.21 and 109.37. Independent expenditures
are not subject to any limits but may be
subject to reporting requirements. (The campaign
of a candidate benefiting from an independent expenditure
has no reporting obligation.) See Citizens
United v. FEC and AOs 2010-11 and 2010-09.
Appendix D provides detailed information on independent
expenditures. The appendix may be reproduced
and distributed by a campaign to anyone who
requests FEC guidelines on independent spending.
Campaign staff should pay special attention to the
section “Coordinated Communications” which explains
when the independence of an expenditure is
compromised through contact with a campaign and
thus results in an in-kind contribution, subject to
contribution limits, to the campaign. If a corporation
or labor organization funds the coordinated expenditure,
it results in a prohibited contribution
limitations,
source prohibitions and reporting. To avoid
receiving an illegal excessive or prohibited contribution,
campaigns should avoid certain interactions
with those making electioneering communications.
See 109.21(d) and Appendix D, Section 2 for more
information.
12. ELECTIONEERING
COMMUNICATIONS
Any broadcast, cable or satellite communication
that is publicly distributed within 30 days of a
primary or 60 days of a general election, refers to
a clearly identified federal candidate and is targeted
to the relevant electorate is an electioneering communication.
100.29(a).
If a registered political committee makes an electioneering
communication, it must report it as it
reports an expenditure or independent expenditure
under the Act. 104.20(b).
Coordination of Electioneering
Communications
If a communication is considered coordinated
under the Commission’s three-part test, it results in
limitations,
source prohibitions and reporting. To avoid
receiving an illegal excessive or prohibited contribution,
campaigns should avoid certain interactions
with those making electioneering communications.
See 109.21(d) and Appendix D, Section 2 for more
information.
2. DISCLAIMERS
Any public communication made by a political committee,
even those that do not contain a solicitation
or express advocacy, must include a disclaimer. 52
U.S.C. §30120(a); 110.11(a)(1).
Public Communications
Public communications include electioneering communications
and any other form of general public
political advertisement, including communications
made using the following media:
• Broadcast, cable or satellite;
• Newspaper or magazine;
• Outdoor advertising facility;
• Mass mailing (more than 500 substantially
similar mailings within 30 days);
• Phone bank (more than 500 substantially
similar calls within 30 days); and
• Communications placed for a fee on another
person’s website.
100.26, 100.27 and 100.28.
The following communications are not considered
to be public communications, but still require a
disclaimer:
• Electronic mail: More than 500 substantially
similar communications sent by a politic
similar communications sent by a political
committee; and
• Web sites of political committees.
110.11(a)(1).
Appendix D
Communications
NOTE: This section discusses communications that
are not made by the campaign, but that are made by
others in support of, or opposition to, a candidate.
Candidates and their campaigns may reproduce and
distribute this appendix to anyone who requests
FEC guidelines on such communications. Citations
refer to Federal Election Commission regulations,
contained in Title 11 of the Code of Federal Regulations
(11 CFR). Advisory opinions (AOs) issued by
the Commission are cited as well. If you have any
questions after reading this appendix, please call the
Commission: 800/424-9530 (toll free) or 202/694-
1100.
1. PUBLIC COMMUNICATIONS
It is important to understand how the Act and FEC
regulations define “public communication” because
many of the rules regarding political communications
depend upon whether the communication in
question is a public communication.
Definition
A public communication is a communication made
by means of:
• Any broadcast, cable or satellite communication;
• Newspaper;
• Magazine;
• Outdoor advertising facility;
• Mass mailing (more than 500 pieces of
substantially similar mail within any 30-day
period);
• Telephone bank (more than 500 substantially
similar telephone calls within any 30-day
period);
• An advertisement placed for a fee on another
person’s website; or
• Any other form of general public political
advertising.1 100.26, 100.27 and 100.28.
1 The term general public political advertising does not include
any Internet communication except for a communication
2. COORDINATED
COMMUNICATIONS
When a committee, group or individual pays for a
communication that is coordinated with a campaign
or a candidate, the communication is either an inkind
contribution or, in some limited cases, a coordinated
party expenditure by a party committee.
Coordination Defined
Coordinated means made in cooperation, consultation
or concert with, or at the request or suggestion
of, a candidate, a candidate’s authorized
committee, or their agents, or a political party
committee or its agents.2 109.20.
Determining Coordination
FEC regulations provide for a three-pronged test to
determine whether a communication is coordinated.
A communication must satisfy all three prongs
of the test to be considered a coordinated communication
(and as a result, count against contribution
limits). 109.21(a).
The three prongs of the test consider:
• The source of payment (payment prong);
• The subject matter of the communication
(content prong); and
• The interaction between the person paying
for the communication and the candidate or
political party committee (conduct prong).
When the payment prong, the content prong and
the conduct prong are all satisfied, then the communication
is a coordinated communication and
results in an in-kind contribution. (See Chapter 13,
Section 10 for instructions on how to report such a
contribution.)
Payment Prong
The payment prong is satisfied when a coordinated
communication is paid for, in whole or in part, by
a person other than the candidate, an authorized
committee or a political party committee with
whom the communication is coordinated. 109.21(a)
