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 in-kind 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.

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).

The three prongs of the test consider:

1. The source of payment (payment prong)
2. The subject matter of the communication (content prong)
3. 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.

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.

Content prong

A communication that meets any one of the following five standards meets the content prong:

1. A communication that is an electioneering communication;
2. A public communication that republishes, disseminates or distributes candidate campaign materials unless the activity meets one of the exceptions at 11 CFR 109.23(b);
3. A public communication that expressly advocates the election or defeat of a clearly identified candidate for federal office;
4. A public communication that:

• Refers to a clearly identified House or Senate candidate and is publicly distributed in the identified candidate’s jurisdiction within 90 days of the candidate’s primary or general election;
• Refers to a clearly identified presidential or vice-presidential candidate and is publicly distributed in a jurisdiction during the period starting 120 days before the primary election (or nominating convention or caucus) in that jurisdiction and ending on the date of the general election;
• Refers to a political party (but not a candidate) in a midterm election cycle, is coordinated with a party committee and is publicly distributed within 90 days of a primary or general election;
• Refers to a political party (but not a candidate) in a presidential election cycle, is coordinated with a party committee and is publicly distributed during the period starting 120 days before the primary in that jurisdiction and ending on the date of the general election
• Refers to a political party (but not a candidate), is coordinated with a House or Senate candidate and is publicly distributed in that candidate’s jurisdiction within 90 days of the primary or general election;
• Refers to a political party (but not a candidate), is coordinated with a presidential candidate and is publicly distributed during the period starting 120 days before the primary until the date of the general election; or

5. A public communication that is the functional equivalent of express advocacy.

For communications that refer to both a party and a clearly identified federal candidate, read 11 CFR 109.21(c)(4)(iv).

Conduct prong

The purpose of the conduct prong is to determine when interaction between the campaign and the person paying for the communication might constitute coordination. A communication that satisfies any one of the conduct standards described in this section satisfies the conduct prong.

1) Request or suggestion

This conduct standard has two parts, and satisfying either satisfies the standard. The first part is satisfied if the person creating, producing or distributing the communication does so at the request or suggestion of a candidate, authorized committee, or political party committee or agent of any of these. A communication satisfies the second part of the “request or suggestion” conduct standard if the person paying for the communication suggests the creation, production or distribution of the communication to the candidate, authorized committee, political party committee or agent of any of the above, and the candidate, authorized committee or political party committee assents to the suggestion.

2) Material involvement

This conduct standard is satisfied if a candidate, candidate committee, political party committee or an agent of any of these was “materially involved in decisions regarding” any of the following aspects of a public communication paid for by someone else:

• Content of the communication;
• Intended audience;
• Means or mode of the communication;
• Specific media outlet used;
• Timing or frequency of the communication; or
• Size or prominence of a printed communication or duration of a communication by means of broadcast, cable or satellite.

3) Substantial discussion

A communication meets this conduct standard if it is created, produced or distributed after one or more substantial discussions between the person paying for the communication, or the person’s agents, and the candidate clearly identified in the communication or that candidate’s committee, that candidate’s opponent or opponent’s committee, a political party committee or an agent of the above. A discussion would be “substantial” if information about the plans, projects, activities or needs of the candidate or political party committee that is material to the creation, production or distribution of the communication is conveyed to the person paying for the communication.

4) Employment of common vendor

The conduct standard provides that the use of a common vendor in the creation, production or distribution of a communication satisfies the conduct standard if:

• The person paying for the communication contracts with, or employs, a “commercial vendor” to create, produce or distribute the communication;
• The commercial vendor, including any officer, owner or employee of the vendor, has a previous or current relationship with the candidate or political party committee that puts the commercial vendor in a position to acquire information about the campaign plans, projects, activities or needs of the candidate or political party committee. This previous relationship is defined in terms of nine specific services related to campaigning and campaign communications. Note that these services would have to have been rendered within 120 days before the purchase or public distribution of the communication; and
• The commercial vendor uses or conveys information about the campaign plans, projects, activities or needs of the candidate or political party committee, or information previously used by the commercial vendor in serving the candidate or political party committee, to the person paying for the communication, and that information is material to the creation, production or distribution of the communication.

5) Former employee/independent contractor

This conduct standard applies to communications paid for by a person or the employer of a person, who has previously been an employee or an independent contractor of a candidate, candidate's campaign committee or a political party committee during the 120 days before the purchase or public distribution of the communication.

This standard requires that the former employee or contractor use or convey information about the plans, projects, activities or needs of the candidate, candidate’s opponent, or political party committee, or information used by the former employee or contractor in serving the candidate, candidate’s opponent, or political party committee, to the person paying for the communication, and the information is material to the creation, production or distribution of the communication.

Under the rules, a candidate or political party committee would not be held responsible for receiving or accepting an in-kind contribution that resulted only from conduct described in the “Employment of common vendor” and ”Former employee/independent contractor” sections. However, the person paying for a communication that is coordinated because of conduct described in these sections would still be responsible for making an in-kind contribution for purposes of the contribution limitations, prohibitions and reporting requirements of the Act.

Dissemination, distribution or republication of campaign material

A communication that republishes, disseminates or distributes campaign material only satisfies the first three conduct standards on the basis of the candidate’s conduct—or that of his or her committee or agents — that occurs after the original preparation of the campaign materials that are disseminated, distributed or republished.

Note that the financing of the distribution or republication of campaign materials, while considered an in-kind contribution by the person making the expenditure, is not considered an expenditure made or a contribution received by the candidate’s authorized committee unless the dissemination, distribution or republication of campaign materials is coordinated. Additionally, republications of campaign materials coordinated with party committees are in-kind contributions to such party committees and are reportable as such.

Agreement or formal collaboration

Neither agreement (defined as a mutual understanding on any part of the material aspect of the communication or its dissemination) nor formal collaboration (defined as planned or systematically organized work) is necessary for a communication to be a coordinated communication.

Safe harbor provisions to the conduct prong

Safe harbor for responses to inquiries about legislative or policy issues

A candidate’s or political party committee’s response to an inquiry about that candidate’s or party’s positions on legislative or policy issues that does not include discussion of campaign plans, projects, activities or needs, will not satisfy any of the conduct standards.

Safe harbor for publicly available information

The standards for substantial discussion, material involvement, use of a common vendor and involvement of a former employee are not satisfied if the information used in creating or distributing the communication was obtained from a publicly available source. Publicly available sources include, but are not limited to:

• Newspaper or magazine articles;
• Candidate speeches or interviews;
• Transcripts from television shows;
• Press releases;
• A candidate or political party's website; and
• Any publicly available website.

Safe harbor for use of a firewall

None of the conduct standards are satisfied if the vendor, political committee, former employee or contractor implements a firewall. The firewall must be designed and implemented to prohibit the flow of information between employees or consultants providing service to the person paying for the communication and those employees or consultants providing services to a political party committee or to the candidate who is clearly identified in the communication or to the campaign of the candidate opposing the candidate clearly identified in the communication. The firewall must be described in a written policy statement that is distributed to all employees, consultants and clients affected by the policy.

Safe harbor for candidate endorsements and solicitations

A federal candidate may endorse or solicit funds for a candidate for federal or nonfederal office in a public communication without the communication being considered a “coordinated communication” with respect to the endorsing or soliciting candidate, so long as the communication does not promote or support the candidate making the solicitation and does not attack or oppose his/her opponent. The safe harbor described in this paragraph also covers candidate solicitations for other political committees (including party committees) and candidate solicitations for certain tax-exempt organizations as described at 11 CFR 300.65.

Safe harbor for certain commercial transactions

A federal candidate may appear in a public communication in which he or she is clearly identified as the owner or operator of a business that existed prior to the candidacy without the communication being considered a “coordinated communication,” so long as the public communication does not promote, attack, support or oppose (PASO) that candidate or another candidate who seeks the same office. The communication must also be consistent with other public communications made by the business prior to the candidacy in terms of the medium, timing, content and geographic distribution.

Party coordinated communications

In addition to general coordinated communications, there are “party coordinated communications,” which are communications paid for by a party and coordinated with a candidate’s campaign. Additionally, some communications by party committees may trigger additional requirements for those committees because they qualify as federal election activity.

Party coordinated communications satisfy a similar three-pronged test for coordination. However, there are two important differences. First, the communication is paid for by a political party committee. Second, electioneering communications do not satisfy the content prong.

In-kind contribution vs. party coordinated expenditure

Party coordinated communications must be treated by the party committee as either an in-kind contribution to the candidate or as a coordinated party expenditure in connection with the general election campaign of the candidate.

Party communications as Federal Election Activity

Certain activities are restricted under the Federal Election Campaign Act when they qualify as "Federal Election Activity (FEA)." If a party committee pays for a public communication that refers to a clearly identified candidate for federal office and that promotes, attacks, supports or opposes any candidate for federal office, the activity qualifies as federal election activity. The communication does not need to expressly advocate the election or defeat of the federal candidate to qualify as FEA. FEA requires specific payment methods.

Disclaimers

Any public communication made by a political committee—including communications that do not expressly advocate the election or defeat of a clearly identified federal candidate or solicit a contribution—must display a disclaimer. Moreover, all public communications that expressly advocate the election or defeat of a clearly identified candidate require a disclaimer, regardless of who has paid for them.