After Citizens United and its progeny paved the way for independent expenditure activity and unlimited contributions to Independent Expenditure Only committees (better known as Super PACs), one key question in campaign-finance law has become how to determine whether Super PACs are coordinating their activities with candidates, party committees, and their agents.
Although the FEC has issued guidance on what constitutes prohibited coordination under federal law, many states have yet to offer their own interpretation of the types of coordination that would be prohibited for Super PACs active in state or local elections. It is under this backdrop that the State of New York has defined for the first time what types of activities will give rise to a finding of prohibited coordination.
These factors include (but are not limited to):
- Whether a candidate formed an entity that later makes expenditures benefitting the candidate;
- Whether a candidate raised funds on behalf of an entity that later makes expenditures benefitting the candidate;
- Whether an entity making expenditures benefitting a candidate is operated by former staffers or immediate family members of the candidate;
- Whether a communication reproduces material prepared by a candidate’s campaign, such as b-roll footage;
- Whether an entity making expenditures benefitting a candidate engages in strategic discussions with the candidate’s campaign regarding the campaign’s strategy;
- Whether an entity making expenditures benefitting a candidate shares vendors or space with the candidate’s campaign; and
- Whether a donor to a candidate also provides a material portion of total funding to an entity making expenditures benefitting the candidate.
As Citizens United develops from a new phenomenon to established law, it is likely that additional individual states will offer their own guidance on the definition of coordination. The state of New York is one of the first to establish factors for regulators to consider. New Jersey, through several bills currently under consideration in the Assembly, may be attempting to do the same. These types of definitions and the role that Super PACs may play will be felt in the 2016 presidential election, New Jersey’s 2017 gubernatorial election, and beyond.
Allison Benz, a summer associate at Genova Burns, assisted in the preparation of this post.