Update: Oct. 15 -- The California Fair Political Practices Commission approved the new regulations governing coordination between campaigns and independent groups.
WASHINGTON -- California’s election agency will vote at its upcoming meeting on new rules to crack down on coordination between candidates and outside groups like super PACs and non-disclosing nonprofits.
New rules proposed by the Fair Political Practices Commission would redefine illegal coordination between candidates and outside groups supporting them to include: the operation of an outside group by former staff of the candidate, the employment of similar vendors across primary and general elections by both the candidate and group, the appearance of a candidate at a fundraising event for the group, the reliance of the group on significant contributions from the candidate’s family, and the republication of candidate materials obtained directly or indirectly by an outside group.
The election regulator’s move to change the rules governing coordination is a major step toward limiting the most egregious examples of candidate and outside group collaboration that have been raised by campaign finance reformers and watchdogs. It also comes as federal election regulators have been incapable of adopting new rules to govern the increased spending by supposedly independent groups.
As with federal races, "independent" spending in California elections has also skyrocketed. In 2014, the state’s race for school superintendent saw super PACs spend more than $26 million. Most of this money came from billionaire supporters of charter schools to back like-minded superintendent candidate Marshall Tuck. The rise of independent spending prompted the FPPC to get ahead of potential coordination problems before the issues plaguing federal elections metastasized within state elections.
This rise in independent spending occurred after the Supreme Court’s 2010 Citizens United decision opened the door to unlimited corporate and union independent spending. A subsequent lower court decision opened the door to unlimited individual spending and led to the creation of super PACs. These two decisions were predicated on the notion that the spending of these groups could not lead to the corruption or appearance of corruption for the supported candidates due to their “independence.”
That independence, however, is based on an incredibly limited legal definition that the FPPC hopes to fix for the state of California.
At both the federal and state levels, the supposed independence of groups has been tested. Candidates including Jeb Bush, John Kasich and Bobby Jindal personally raised millions of dollars for super PACs. Party leaders like Barack Obama, Harry Reid, Mitch McConnell, Nancy Pelosi and John Boehner appear at fundraising events for these groups. Most super PACs are run by former aides to the candidates they seek to support or, in the case of groups focused on congressional elections, former aides to party leadership. In a number of cases, family members have donated to or created their own super PACs to support kin running for office.
These same trends toward collaboration and coordination at the national level play out in California, too. The FPPC has already fined a super PAC that supported the 2010 state legislative campaign of Luis Alejo for illegal campaign coordination after Alejo's campaign manager approved supportive mailers sent by a super PAC where the manager also held a principal position. Alejo's campaign was forced to pay back the cost of the mailers.
The FPPC has also received at least one request for a ruling on whether an elected official can appear at a fundraiser for a group planning to spend money to attack the official’s opponents. Another request to the FPPC asked whether a district attorney candidate’s spouse could contribute $10,000 to a supposedly independent group supporting the candidate’s election.
Among the new presumptions of coordination considered by the FPPC, the operation of an outside group by former staff would apply to staff who had worked in senior or advisory roles for the candidate “within 12 months prior to the date of the election in which the expenditure is made.”
The commission will vote on the new rules at its next meeting on Oct. 15.
CORRECTION: An earlier version of this article stated that the FPPC fined the legislative campaign of Luis Alejo. In fact the FPPC fined a super PAC that supported Alejo’s campaign.