When an SSF pays for a communication that is coordinated with a campaign or a candidate, the communication is an in-kind contribution subject to limitations and reporting by both the campaign and the SSF.
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.
FEC regulations provide for a three-pronged test to determine whether a communication is coordinated. Under these regulations, 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); and
3. The interaction between the person paying for the communication and the candidate or political party committee (conduct prong).
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.
A communication that meets any one of these four 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;
3. A public communication that expressly advocates the election or defeat of a clearly identified candidate for federal office; or
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 election;
- Refers to a clearly identified presidential candidate and is publicly distributed during the period starting 120 days before the primary election and ending on the date of the general election;
- Refers to a political party 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 in a presidential election cycle, is coordinated with a party committee and is publicly distributed during the period starting 120 days before the primary and ending on the date of the general election;
- Refers to a political party, 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; or
- Refers to a political party, 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.
Should the content and payment prongs of the test be satisfied, there still must be some interaction between the SSF and the campaign committee for there to be coordination. The conduct prong identifies the possible types of interactions. A communication that satisfies any one of the conduct standards satisfies the conduct prong.
Request or suggestion
This conduct standard has two parts, and satisfying either satisfies the standard. The first part is satisfied if the entity creating, producing or distributing the communication does so at the request or suggestion of a candidate, authorized committee, political party committee or agent of any of these. A communication satisfies the second part of the “request or suggestion” conduct standard if the SSF 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 these, and the candidate or political party committee assents to the suggestion.
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.
A communication meets this conduct standard if it is created, produced or distributed after one or more substantial discussions between the entity 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 these. 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.
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; and
- 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. 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.
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’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, the candidate’s opponent or political party committee, or information used by the former employeeor 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.
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.
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, which 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 is satisfied if the vendor, political committee, former employee or contractor implements a firewall. The firewall must 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 another 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 SSFs) and candidate solicitations for certain tax-exempt organizations.
Solicitations on behalf of a candidate
An expenditure by an SSF for a communication that solicits the public for contributions on behalf of a candidate is an in-kind contribution if the SSF coordinates with the candidate’s committee.
Disclaimer notices on coordinated communications by SSFs
Any public communication made by a political committee—including communications that do not expressly advocate the election or defeat of a clearly identified candidate or solicit a contribution—must display a disclaimer notice informing the audience of who has paid for the communication and whether or not it has been authorized by a candidate or authorized committee. As explained, disclaimer notices must also appear on political committees’ Internet websites and in certain email communications.
A disclaimer notice must contain the full name of the SSF, along with any abbreviated name used to identify the committee or the connected organization.
Reporting coordinated communications as in-kind contributions
Itemize all in-kind contributions made to federal candidate committees and other political committees, regardless of amount, on Schedule B for Line 23. Report the total from that schedule on Line 23 of the Detailed Summary Page.
Along with the basic information included for all types of disbursements, when itemizing a contribution to a candidate committee on Schedule B, the SSF must include the candidate’s name and the office sought (including the state and, if applicable, congressional district). Also, the committee should specify the election for which the payment was made by checking the appropriate category in the election designation box.
When making an in-kind contribution, an SSF must report the date the good or service is provided as the date of the contribution. It does so by itemizing the contribution on Schedule B for Line 23 as described. However, payments for such goods or services are usually made on a different date than the date the contribution is provided to the campaign. In this case, the SSF must also report each payment made as an operating expenditure on the date the payment is actually made to the recipient.
Reporting payment made in advance
For example, if an SSF pays its connected organization in advance for the use of an email list (as required by the FEC’s anti-facilitation regulations), it would itemize the payment as an “Other Federal Operating Expenditure” on Line 21b. Then, when the email list is actually used on behalf of a campaign, it must itemize the payment again on Schedule B for Line 23 using the date of the use of the list as the date the contribution is made. To reconcile its totals, it must also itemize the payment again, but as a negative entry, on Schedule B for Line 21b.
Payment made after the contribution provided
In other cases, the SSF may pay for an in-kind contribution after the good or service is actually provided. In this case, it must report both the date the in-kind contribution is provided and the date of the payment.