The Coordination Line and the Conduct Standards

Coordination is the hinge on which most campaign finance disputes about outside spending turn. A communication that is coordinated is an in-kind contribution, subject to limits and source prohibitions. The same communication, made without the disqualifying contacts, is an independent expenditure subject to neither. The regulation resolves that difference through a structured test rather than through a general assessment of how helpful the spending was.

The Structure of the Three-Prong Test

A communication is coordinated only where three separate conditions hold at once. It must be paid for in whole or in part by a person other than the candidate, the candidate's authorized committee, a political party committee or an agent of any of them. It must satisfy at least one of the enumerated content standards. And it must satisfy at least one of the enumerated conduct standards. Failing any one of the three takes the communication outside the rule entirely.

The structure matters more than the individual definitions, because it explains why arguments about coordination so often address a single element. A spender defending a payment does not have to establish that no contact occurred if the communication fails the content prong. A complainant alleging coordination must plead facts going to each prong rather than to the general impression that a campaign benefited from the spending.

The Content Standards

The content prong is satisfied by any of several defined categories. One covers an electioneering communication as separately defined. Another covers the dissemination, distribution or republication of campaign materials prepared by the candidate or the committee. A third covers express advocacy. A fourth covers a public communication that refers to a clearly identified candidate or a political party and is publicly distributed within stated periods before an election, in the relevant jurisdiction.

The temporal categories are the ones most often litigated, because they capture communications that never urge a vote. A public communication naming a candidate and distributed inside the window satisfies the content prong on its face, and the analysis then moves to conduct. Outside the window, the same communication satisfies the content prong only if it falls into one of the other categories, which is why the timing of a placement can change the entire framework applied to it.

The Conduct Standards

The conduct prong is satisfied by any of several defined situations. The clearest is a request or suggestion: the communication is created, produced or distributed at the request or suggestion of the candidate or committee, or the spender suggests the communication and the campaign assents. A second is material involvement, where the campaign is materially involved in decisions about content, audience, means, timing, medium or frequency.

A third is substantial discussion, where the communication is created after one or more substantial discussions about the campaign's plans, projects, activities or needs, and the information from those discussions is material to the communication. Two further standards address relationships rather than conversations: the use of a common vendor that has served the campaign within a stated period and conveys material information, and the use of a former employee or independent contractor of the campaign in the same way.

The conduct standards share a common feature: none of them requires an agreement, and none requires payment to pass in either direction. A single substantial conversation, or a vendor relationship carrying material information across, is enough. That design places the evidentiary weight on records of contact rather than on documents of understanding, which is why coordination inquiries proceed by reconstructing who spoke to whom and when rather than by looking for a contract.

Safe Harbors and the Firewall

The regulation supplies several provisions that negate the conduct prong. The firewall provision is the most used: a written policy, actually implemented and distributed to the relevant personnel, that prohibits the flow of information about a campaign's plans between employees or consultants working for the campaign and those working on the communication. The safe harbor is unavailable where specific information indicates that the firewall failed, so the policy must be operative and not merely drafted.

Other provisions address responses to inquiries about legislative or policy positions, the use of publicly available information in a defined sense, and certain endorsement and solicitation communications. Each is narrow and each is conditioned. A spender relying on one should be able to state which provision applies and why its conditions are met, because the certification of independence required by the independent expenditure reporting rules rests on that conclusion.

Party committees occupy a distinct position within the framework. Spending by a party committee on behalf of its own nominee may be coordinated by design under separate provisions that permit a defined amount of coordinated party expenditure, or it may be made independently under the ordinary rules. The characterization determines which ceiling applies, and a party committee that has made coordinated expenditures for a candidate cannot afterward treat further spending for that candidate as independent without a clean separation.

What Follows From a Finding of Coordination

A coordinated communication is an in-kind contribution to the candidate or party with which it was coordinated. It counts against the spender's limit, as attributed under the rules in the attribution and limits framework, and it must be reported by the receiving committee as a receipt with an offsetting expenditure. Where the spender is a source that may not contribute at all, the payment violates the prohibitions collected in the rules on impermissible sources as well as the limits.

The regulation itself has been through repeated rounds of amendment, judicial review and remand, and parts of it have been vacated and rewritten more than once. Courts have divided over how far the agency may narrow the statutory concept of coordination through the content and conduct prongs, with some decisions requiring fuller justification for the limits drawn and others upholding the framework as a reasonable exercise of rulemaking. That history is why the current text should be read directly rather than summarized from memory.