FEC Approves Coordination Rule

With a 5-1 vote, the Federal Election Commission (FEC) approved a rule on coordinated communications, to regulate messages that are the "functional equivalent of express advocacy" for or against candidates. This "functional equivalent" language comes from the 2007 Supreme Court decision in Wisconsin Right to Life Inc. v. FEC. A separate provision was voted down and would have covered all messages that "promote, support, attack or oppose" candidates. The final rule does not include a proposed safe harbor for communications where federal candidates endorse or solicit support for 501(c)(3) nonprofit organizations, and the policies of those organizations.

The FEC's coordination rule address when spending on political communications by outside groups is considered coordinated with a candidate, and therefore subject to certain restrictions. Messages that are deemed independent of a campaign are not subject to FEC rules. BNA Money and Politics ($$) reports; "It remained unclear, however, how much real guidance the FEC rule would provide to political groups in determining whether and how their spending will be subject to FEC regulation."

Commissioners could not agree on examples of messages that would be regulated under the new rule. "FEC commissioners acknowledged that the agency could be sued yet again over the so-called coordination rule, which has been challenged three times since it was written to implement the 2002 Bipartisan Campaign Reform Act."

The FEC also approved a rule to define regulated federal election activity. The new rule requires the use of hard money for voter registration activity in federal elections which is "encouraging or urging" a group of potential voters to register and vote. Both rulemakings were required by a 2008 federal appeals court decision in Shays v. FEC (Shays III).

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