In Search of a Safe Harbor for Member Communications

The contest over In-Kind Contribution Standards in New York City has taken a new turn.  NYC Campaign Finance Board (CFB) Executive Director Amy Loprest announced today that the CFB would address a new advisory opinion request, which seeks to create space for a narrow band of communications between a candidate’s campaign and a prospective Independent Spender to ensure that such communications will not cause the ultimate expenditure to be treated as an in-kind contribution to that candidate.  Ms. Loprest expressed the hope that the prospect of this advisory opinion might head off the push for legislation (Intro. 978). The advisory opinion request describes the current motivation for new legislation as arising from a footnote 8 in an opinion the CFB released earlier this year.  That footnote 8 suggested that any communication betwixt candidate and spender “would suffice” to give rise to an in-kind contribution.  Where did we hear that concern first? Interestingly, the AO request concerns “coordination” and not member communications per se.  Thus, it invites a CFB opinion that would have applicability to both communications to members and to the general public since, unlike the proposed legislation, the current law makes no distinction as to what constitutes coordination based on the intended recipients of the communication.  Indeed, it’s hard to see how the CFB can do a special carve-out for member communications by opinion alone since, as the CFB has previously noted in an earlier footnote 8, current law does not classify communications to members separately from communications to non-members.  On this one, the CFB may find itself caught behind a proverbial “Footnote 8-Ball.” But in focusing strictly on coordination, perhaps the CFB might find a resolution through the dictionary.  The law’s standard for Independent Expenditures consists of a negative answer to each of five verbs: “authorize, request, suggest, foster or cooperate in” the “activity” at issue.  A safe harbor may be built through a literal understanding of the verbiage that is actually used and a clearly-stated description of what is meant by “activity.”