Broadly then, independent expenditures are permissible but coordinated communications are not. So, what makes a communication coordinated? In general, the rules provide that a corporations ad or communication would qualify as coordinated if it were done in cooperation, consultation or in concert with a candidate, a campaign or their agents. For assessing whether a given communication qualifies as being coordinated, the FEC has established a multifactor test based on the content of the communication and the conduct of the people involved.
Under the test, a corporations communication may qualify as being coordinated if it was created, produced or distributed: (1) at the suggestion of the candidate; (2) with material involvement from the candidate on decisions regarding things like the communications content, intended audience or mode; or (3) after a discussion with the candidate or candidates opponent in which information about campaign plans, projects, activities or needs material to the communication was conveyed to the corporation. This is true whether the coordination is done with the candidate or someone acting on the candidates behalf. Moreover, the rules say that a communication can qualify as being coordinated with a candidate even absent agreement or formal collaboration with the candidate.
But, this test and these rules may well be in flux. In fact, the distinction between independent expenditures and coordinated communications has been the subject of much disagreement for years and has been litigated many times. Even as Citizens United was being decided, the FEC was again considering changes to the rules regarding what counts as coordination.
Last week, as a direct result of the decision, the FEC reopened the opportunity for public comment regarding the new rules. The FECs current official guidance regarding coordinated communications states that portions of the guidance may be affected by Citizens United and that the FEC will publish new guidance as soon as possible. Meanwhile, Congress might also act, as last week top Democrats vowed that they would soon introduce a legislative response to the decision to be enacted in time for elections this fall. For now, all you can do is study the rules and guidance as they currently exist and do your best to comply.
Of course, this leaves open all sorts of questions. For example, now that a corporations independent expenditures are unrestricted, does any discussion between the corporations employees and a campaign regarding a corporations political ad disqualify it from being independent? If not, who may discuss the ad and what may they say without it rising to the level of coordination? Is it unconstitutional to restrict discussions between corporations and campaigns regarding political ads?
Unfortunately, I dont have the answers to these questions. But, they should be answered in the coming months by the FEC, Congress, and, I suspect, the courts. Stay tuned.
C. Simon Davidson is a partner with the law firm McGuireWoods LLP. Click here to submit questions. Readers should not treat his column as legal advice. Questions do not create an attorney-client relationship.