Chilling Effect?

Yesterday, the New York City Campaign Finance Board (CFB) issued its first advisory opinion addressing its new independent expenditure (IE) disclosure rules.  The opinion states: “[g]enerally, any communication between an entity and a candidate would suffice to make an expenditure by that entity non-independent and thus a potential in-kind contribution….”   This test for coordination is quite expansive.  The CFB appears to believe that “any communication” would be enough to meet the legal standard that the candidate “authorized, requested, suggested, fostered or cooperated in” the activity at issue.

It was just last month that the CFB had been significantly more precise in describing the kind of communications that could constitute coordination: “[d]iscussing the content or distribution of a leaflet with the candidate, or having someone with a connection to the candidate plan an advertisement, are examples of factors that would make an expenditure not independent…”

If the new, broader language does reflect the CFB’s thinking, one possible implication is that entities that interview candidates for possible endorsement may not later make independent expenditures to publicize the endorsement.