It may have been legal, or perhaps not, depending on the facts, which are so far not fully known. But the use of Twitter to feed polling information to outside groups lends itself to various conclusions about the state of campaign finance law. The content of the FEC rule against coordination can be brought into question, or its enforcement criticized, or the problem can be passed off as another instance of shenanigans by a regulated community always exploring paths around the law. Or the issue could be, more profoundly, the very conception behind the current anti-coordination rules. The rules in place have been given considerable thought and are quite complicated. On their face, they’re not unreasonable. They attempt to distinguish between the case where a candidate is merely picking somebody’s pocket, in control of what is spent on her behalf, and the case where the spender retains control but, looking to make the most effective use of the money, wants to incorporate in this assessment the candidate’s view of the state of the campaign. The coordination rules apply where the candidate has requested an ad, or the spender and candidate have engaged in discussions about particular proposed public communications—for example, “substantial discussions in the course of which “material information” is shared that would affect the choice of content or the timing of campaign advertising. In sorting out when a discussion becomes substantial, the agency inquires into whether information has been “conveyed … about the candidate’s or political party committee’s campaign plans, projects, activities, or needs.” See 11 C.F.R. 109.21(d)(1)-(2). (These rules also apply to advertising paid for in coordination with parties, or with the “agents” of parties or candidates.
The risk addressed by the rules is that the spender is merely doing the candidate’s bidding and the speech is hers, not the spender’s. In the Supreme Court’s terms, of course, this is the difference between unlimited independent expenditures and a contribution that is restricted in amount.
But the spender is able to use information the candidate has made publicly available. Id. It is not surprising that with direct communications subject to strict limits, the contact between candidate and ally has begun to move to this “public” exception, and the Twitter case may be someone’s idea of how to share information publicly but only in a narrow and technical sense, not for all the world to see. It appears that this technique served primarily to transmit polling data, but there is no way of knowing, on the facts available, if this was “material” information that influenced spending decisions and triggered a violation of the coordination rules.
Full Article: Coordination Controversy in the Twitterverse –.