On December 5 the Federal Election Commission (FEC) approved new regulations that define when communications with a federal candidate, a campaign, party or their agent, may turn an otherwise independent expenditure into a prohibited in-kind campaign contribution. The rule implements the Bipartisan Campaign Reform Act of 2002, which required the FEC to write tougher regulations in this area. The regulations will take effect 30 days after publication in the Federal Register. The new rules use a three-part test to determine when an expense is considered “coordinated”. It must be for a public communication paid for by someone other than a candidate or campaign and meet specific standards relating to both content and conduct between the candidate and group or person paying for it.

The content standard is met if the communication is:
 

• an “electioneering communication”, or
   
• redistributes or republishes campaign material paid for by a candidate, campaign or their agent, or
   
• expressly advocates for election or defeat of a federal candidate, or
   
• is made within 120 days of a federal election, refers to a federal candidate and is targeted to the area where he or she will appear on the ballot.

The conduct standard is met, whether or not there is a formal agreement or formal collaboration, for communications:
 

• that are made at the request or suggestion of a candidate, campaign, party or their agents, or
   
• are the result of material involvement of a candidate or campaign in decisions on the content, intended audience, distribution plans, timing or media used, or
   
• that are created or distributed after substantial discussion about the candidate or party’s plans, projects, activities or needs, or
   
• that use a vendor that has provided expert services to the candidate or campaign and conveys information about the candidate’s plans, or
   
• is paid for or uses information from a former employee or consultant of a candidate who conveys material information about the plans, activities or needs of the campaign.

There is an exception for republication of candidate campaign materials that are distributed by the campaign that prepared the materials, are part of a news story or editorial or are responses to inquiries about legislative or policy issues, and do not contain information about the campaign.

Since corporations, including nonprofits, are prohibited from making contributions to federal candidates, the new rules could impact groups that interact with public officials or community leaders that are also federal candidates and communicate with the public about issues that involve them. However, the exceptions should protect organizations involved in lobbying or get-out-the-vote and voter education activities. For more background see OMB Watch comments and other comments on the draft rules. Transcripts of public hearings are available on the FEC website.