FEC Update with Matt Petersen: Election Canvassing and Coordination
By: Matthew Petersen
Earlier today, the Federal Election Commission (FEC) issued an advisory opinion that provides useful clarifications regarding the definitions of “public communication,” “coordinated communication,” and “coordinated expenditure.” The opinion involved a state political committee that plans to undertake a paid canvassing program in consultation with federal candidates and parties using funds raised outside of federal contribution limits.
The advisory opinion was requested by Texas Majority PAC (TMP) — a nonfederal political committee registered in Texas. Under Texas law, such a committee may accept unlimited contributions; however, any funds from corporations or labor unions may only be used for establishment and administration costs and independent expenditures.
TMP plans to carry out a paid canvassing operation under which it will hire vendors that will produce canvassing literature, develop a script, and hire and train individuals to distribute the literature to the homes of pre-selected voters. No corporate or labor funds will be used to pay for the canvassing operation. TMP wishes to refer to federal candidates and political parties in the literature and script and anticipates consulting with such candidates and parties on the canvassing operation — thus, learning of their non-public plans, projects, activities, or needs.
TMP asked whether: (1) the canvassing literature and script are “public communications” (2) the canvassing literature and script are “coordinated communications,” (3) the production and distribution costs for the canvassing communications are “coordinated expenditures,” and (4) TMP may provide the data resulting from the canvassing operation to federal candidates and parties for free or at reduced charge. The FEC answered each question “no.”
With respect to the first question, the FEC concluded that the proposed canvassing operation falls outside the definition of “public communication” because canvassing is not a form of “general public political advertising.” The FEC noted “general public political advertising” involves dissemination of content “through a medium controlled, and to an audience established, by a third party”— that is, an intermediary like a TV or radio station, newspaper, or third-party website. However, according to the FEC, the proposed canvassing operation would not involve such an intermediary since “the canvassing vendors neither establish the audience nor control the forum. Thus, the FEC determined the canvassing operation cannot be considered a “public communication” since it does not involve an intermediary.
Regarding the second question, to be considered a “coordinated communication” under FEC regulations, a communication must either be an “electioneering communication” (which canvassing is not) or a “public communication.” But since the FEC concluded that the proposed canvassing operation (with its associated literature and script) does not trigger the definition of “public communication,” the content prong of the coordinated communication rule (11 C.F.R. § 109.21) is not met. Therefore, according to the FEC, the canvassing literature and script are not “coordinated communications,” notwithstanding any consultations between TMP and federal candidates and political parties.
As for the third question, the FEC explained that the definition of “coordinated expenditure” (11 C.F.R. § 109.20) does not apply to communications. Since the canvassing literature and script clearly are communications, any payments related to producing and disseminating such communications cannot be considered “coordinated expenditures.”
Finally, as for the data gathered from the canvassing operation, TMP acknowledges that it the data gathered from the canvassing operation is a thing of value. As such, the Commission concluded that if TMP provides the data to federal candidates and parties without charge, that would constitute an in-kind contribution.
