Vote For This And We Will Support You! How The New Definition of Coordinated Communications Affects Political Speech in The Wake of Citizens United

Summary: As we previously noted, the Supreme Court has ushered in a new dawn on corporate political spending in its recent decision in Citizens United v. Federal Election Commission. Citizens United reverses decades of statutory and case law that prohibits corporations from using their general treasuries to fund independent political advertising supporting or opposing candidates for local, state or federal office, or what it is termed "express advocacy". 558 U.S. 50 (2010). It also removes restrictions on independent advertising done within close proximity to either a primary or general election, and which refers to a clearly identified candidate for federal office (known as "electioneering"). We continue to monitor Federal Election Commission ("FEC") efforts to implement the Court's decision in Citizens United, including the announcement on February 5, 2010 that it will no longer enforce provisions prohibiting corporations and labor unions from making either direct expenditures or electioneering communications. The latest development is a notice in the Federal Register from the FEC of revisions to the regulations concerning "coordinated communications" i.e., political advertising paid for by an entity that is coordinated with either a federal candidate, political campaign or political party. 75 FR 55947. These rules will take effect on December 1, 2010.

For those navigating the post-Citizens United campaign finance world, these revised regulations on coordinated communications are highly relevant. While Citizens United lifts prohibitions on direct corporate and labor communications, the Court's decision only applies to those communications that are made independently from a federal candidate, campaign, or political party. Contributions that are coordinated with a federal candidate, campaign or political party are considered a direct, in-kind contribution, and remain illegal in the case of corporations or labor unions. 2 U.S.C. § 441b(a). Understanding the revised test for coordinated communications is vital to any corporation or labor union seeking to run political advertisements supporting or opposing a candidate for federal office.

This alert discusses the revised test proposed for coordinated communications in order to analyze the limitations on political speech by corporations and labor unions that remain after the Court's decision in Citizens United.

  1. What is a "Coordinated Communication"? FEC regulations look to both the content of...

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