AO 2016-21: Communications would be coordinated if former campaign employees use or convey material information to political action committee

Great America PAC, a nonconnected hybrid political action committee, plans to hire phone bank personnel who may previously have been employed by a candidate or party committee. The Commission concluded that the phone bank communications proposed in the request would be coordinated communications if the employees in question used information from their prior employment in their work for the Great America PAC or conveyed such information to the PAC, and such information was material to the creation, production, or distribution of the communications.

Background

Great America PAC (the PAC) plans to hire individuals and vendors to contact potential voters through phone banks to expressly advocate the election of federal candidates. The phone banks will consist of more than 500 calls of an identical or substantially similar nature within a 30-day period.

The PAC presumes that a number of employees that they hire for the proposed phone banks will have performed similar work for federal candidates, state party committees, or national party committees within the previous 120 days. Such employees may have received training from their previous employers on technical aspects and communication elements of conducting phone banking activity. The PAC believes it is possible that employees may, despite instructions to the contrary, discuss with other employees information regarding their previous campaign employment in relation to their work for the PAC.

Analysis

The Federal Election Campaign Act (the Act) provides that expenditures made by any person that are coordinated with a federal candidate or political party committee are treated as in-kind contributions to that candidate or party committee. 52 U.S.C. § 30116(a)(7)(B). Additionally, any payment for a communication that is coordinated with a candidate, a candidate’s authorized committee, a political party committee or the agents of any of these must be treated as an in-kind contribution to the candidate or party committee with whom it was coordinated. In-kind contributions are subject to the limitations, prohibitions and reporting requirements of the Act. 11 CFR 109.21(a) and (b)(1).

In determining whether a communication is coordinated, Commission regulations provide for a three-prong test. First, the communication must be paid for, in whole or in part, by a person other than the candidate committee or political party committee. Second, the communication must satisfy one of five content standards. Third, the communications must satisfy one of five conduct standards. See, generally, 11 CFR 109.21(a).

Since the PAC plans to pay for the communications, the payment prong is satisfied. Likewise, the content prong is satisfied because the phone banks will qualify as public communications that expressly advocate the election of federal candidates. The third prong, the conduct prong, would be satisfied if an employee of the person paying for the communication (a) was employed by the candidate identified in the communication or that candidate’s opponent, or a political party committee, within the previous 120 days, and (b) that employee uses or conveys to the payor information about the candidate’s or party’s plans, projects, activities, or needs, or information used by the employee in providing services to the candidate or party, and the information is material to the creation, production, or distribution of the communication. This conduct standard is not satisfied, however, if the information in question was obtained from a publicly available source. 11 CFR 109.21(d)(5).

The Commission concluded that this "former employee" conduct standard is dependent on the materiality of the information that the employee uses or conveys and that the regulations make no distinction between categories or ranks of employees. The regulations therefore apply to any employee who uses or conveys information that is material to the communication, regardless of their rank within the organization.

The Commission noted that the former employee conduct standard does not require that the former employee act under the continuing direction or control of, at the behest of, or on behalf of, his or her former employer. Rather, it applies to situations in which either the former employee provides information or makes use of the information but does not share it with the person who is paying for the communication. Moreover, the Act provides that neither agreement nor formal collaboration is necessary to establish coordination. 11 CFR 109.21(e).

If a phone bank employee were to disobey the PAC’s explicit instructions and use information acquired through a previous position with a candidate or political party committee merely in the course of his or her conversation with a potential voter, this information is "…highly unlikely to be material to the phone bank’s creation, production, or distribution, and therefore equally unlikely to satisfy the former employee conduct standard."

The application of the former employee conduct standard depends upon the materiality of the information to the PAC’s communications, provided that the information was not gathered from a publicly available source. The conduct standard covers instances where the information is material to decisions such as those regarding content, means or mode, specific media outlet, timing or frequency, or size, prominence or duration of the communication.

Finally, the Commission held that if the PAC were to terminate an employee immediately upon learning of that employee’s potential triggering of the conduct prong, this would not then render subsequent communications independent. If the phone bank were a coordinated communication because an employee used or conveyed information that was material to the phone bank’s creation, production or distribution, the act of terminating an employee would not subsequently change the use or conveyance of this information or its materiality to the PAC’s decisions relating to the phone bank.

Issued January 12, 2017; 9 pages.

Resources

• Advisory Opinion 2016-21 
  
• Commission consideration of AO 2016-21 [mp3]