Defining Democracy: Coordination

In our first installment of Defining Democracy, we explained that “collusion” is a catch-all term without a precise legal meaning, but is being used more generally as a layman’s term to cover illegal acts like conspiracy, espionage, campaign finance violations, bribery, and fraud involving – for example – the Trump campaign and Russia. This installment of Defining Democracy is dedicated to “coordination,” a word that has a precise legal meaning and is prohibited by federal campaign finance law in certain circumstances.

Federal law states that “expenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents, shall be a contribution to such candidate.” This is the “coordination” law; it means that any political expenditure made by a person in coordination with a candidate is treated as though that person made a political contribution directly to that candidate. In case you’re wondering, the law treats political action committees (PACs) as people.

Contributions from American citizens to federal candidates are limited to $2,700 per election. Foreign nationals are prohibited by federal law from making political contributions and expenditures in U.S. elections and U.S. candidates are prohibited from receiving contributions from foreign nationals.

So while it’s permissible for an American to coordinate spending with a candidate if the expenditure doesn’t exceed the $2,700 contribution limit, it’s illegal for a U.S. national to spend more than $2,700 in coordination with a candidate. And it’s also illegal for a foreign national to make any political expenditures in coordination with a U.S. candidate.

For example, if the Trump campaign coordinated with any Russian national on money spent by the Russian to influence last year’s presidential election, both the Trump campaign and the Russian spender violated federal law. Similarly, if the Clinton campaign coordinated with any Ukrainian national on money spent by the Ukrainian to influence last year’s presidential election, then both the Clinton campaign and the Ukrainian spender violated federal law. With respect to expenditures by foreign nationals coordinated with candidates, the $2,700 contribution limit is irrelevant—a foreign national expenditure of any value is illegal.

It’s worth emphasizing that the federal campaign finance law’s “coordination” restrictions apply only to coordinated expenditures—not to some broader, abstract act of coordinating. This point is often lost in discussions of coordination restrictions.

The Federal Election Commission (FEC) has two regulations specifying in greater detail what constitutes coordination—one pertaining specifically to coordinated spending on political communications and another pertaining to all other types of coordinated spending.

The coordination regulation applicable to political communications applies only to what the FEC has defined as a “public communication,” which includes most forms of mass communications—TV, radio, newspaper, magazine, billboards, mass mailings, telephone banks—but the “public communication” definition does not include “communications over the Internet, except for communications placed for a fee on another person’s Web site.” If an outside spender who pays for certain public communications referring to a candidate engages with that candidate, or another candidate in the same race, in conduct specified in the regulation, the payment for the communication is a coordinated expenditure under the law and is treated as a contribution by the spender to the candidate. For example, if the candidate requests or suggests that the spender make the expenditure, or is materially involved in the spender’s decisions about the content or audience or timing of the communication, then the expenditure is “coordinated” under the law.

The FEC regulation applicable to coordinated spending on things other than public communications largely mirrors the statutory language, providing that any expenditure “made in cooperation, consultation or concert with, or at the request or suggestion of, a candidate [or] a candidate’s authorized committee” is an “in-kind contribution to” the candidate with whom it was coordinated.

So what do these statutes and regulations mean in practice? They mean that by-and-large candidates can’t discuss political spending with spenders outside the campaign and the candidate’s political party. (Political parties have specific rules that permit significant spending in coordination with their candidates.) Federal law contains well-defined restrictions on coordinated spending. And while the press and the public are discussing whether the Trump campaign “colluded” with Russia, Special Counsel Robert Mueller and his team are likely investigating—among other things—whether Russia made any expenditures in “coordination” with the Trump campaign.

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