Tuesday, April 14, 2015

Can MAYDAY allow candidates to post?

I have been doing research on the question of whether MAYDAY can allow candidates to post on its website and Facebook pages.

As I said in the preceding entry, The limitations of MAYDAY, MAYDAY has not publicly articulated much about the limitations MAYDAY considers itself to be under by reason of the coordination rules. I said that my impression is that MAYDAY made a decision for 2014 that Congressional candidates would not be allowed to post on the MAYDAY website and Facebook pages, and that I did not know whether this decision was 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.

Related to these matters, here is part of what I am able to piece together from Appendix D of the FEC Candidate Guide:

First, the "Content Prong" divides communications between "electioneering communications" and "public communications."

"Public communication" is defined as 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-dayperiod);
• 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.

There is a footnote that says:
1 The term general public political advertising does not include any Internet communication except for a communication placed for a fee on another person’s website.

If a candidate posts on the MAYDAY website or Facebook pages, it would not appear that a "public communication" is being made.

"Electioneering Communication" is defined as "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.

The periods of time in question are 30 days before a primary election and 60 days before a general election.

Even though there may be some safe harbors here that MAYDAY could avail itself of in allowing candidates to post, I can appreciate that MAYDAY could still choose to go for a blanket prohibition against allowing Congressional candidates to post.

If MAYDAY adopts such a blanket prohibition. there are significant questions for MAYDAY to address about candidates.

What will MAYDAY do if a a candidate wants to wave the MAYDAY banner to the effect of "I back MAYDAY, and if you back MAYDAY, you should support me."

What if a candidate in a state, say California, tries to start a group, trumpeting "We are the MAYDAY supporters of such and such Congressional district in California?"

Does MAYDAY consider the foregoing use of the MAYDAY name and of expenditures that MAYDAY has made to publicize the MAYDAY name as creating a risk of "coordination"?

I know these questions may be viewed by MAYDAY as not yet ripe, but they are ripe for me.

No comments:

Post a Comment