Entering Murky Waters, States Diverge On Campaign Coordination Rules

Since the Supreme Court's 2010 Citizens United decision, independent groups can spend unlimited funds in elections on behalf of candidates — whether they're labor unions, business interests, advocacy organizations or generic, patriotic-sounding committees with mysterious donors.

Those outside groups are becoming increasingly important in statewide elections. We asked NPR member station reporters in California and North Carolina to explain how those state-level rules are diverging in important ways.

North Carolina: Coordination Paradise

Officially, it's a clarification. But a recent decision by the North Carolina Board of Elections allows state and local candidates to do something those seeking federal office can't — directly coordinate where, when and on what outside groups spend their money during an election. It's a move that has implications for the governor's race on down.

This ruling deals with nonprofit 501(c)(3)s and 501(c)(4) groups that can raise unlimited amounts of money from both corporate and individual donors. While they are officially independent and not tied to a specific candidate or particular party, they care which candidates win.

Campaigns for Congress and the White House are barred from directly working with groups like these. But states set their own rules on coordination. So on July 7, attorney Michael Weisel asked the North Carolina Board of Elections to rule on how closely these outside groups can work directly with candidates.

"This was really an attempt to make sure that the playing field was level," he said, adding it would make sure that "everybody had an idea of what was permitted and what was not."

And the answer he got back generally boils down to this:

"There's nothing in the statute that prohibits it," according to Kim Strach, executive director of the State Board of Elections.

What that means is that politically active nonprofits can now tell a candidate they are considering running an ad. Candidates can give outside groups their opposition research — all the dirt they had on their opponent. Outside groups and a campaign can discuss how much each would spend on TV ads to get the most bang for their political bucks.

All this can be hugely beneficial for candidates, argues Stephen Spaulding, senior policy council for the watchdog group Common Cause, "because that's money they didn't have to raise necessarily or money they had to spend out of their own campaign coffers."

These nonprofit groups, he adds, could easily become the "phantom arms of political campaigns and accept money from any source and at any limit."

Strach says that interpretation of the rules is "clearly not true."

"I would hope North Carolina is not seen as a state where anything goes because I definitely don't think that we are," she said.

A Few Key Restrictions

While there is nothing outright banning coordination, there are limitations for these groups. The first, Strach says, is that issue groups need to stay focused on issues, not candidates.

In principle, those are hard and fast rules, but in practice, it's not so clear. Here's a 2014 ad from one of Michael Weisel's clients, North Carolina Families First.

Focused on issue? Check. In this case Duke energy's coal ash spill.

No expressed advocacy? Again, check. But North Carolina Families first spent $584,000 airing this ad, and it knows you can say a lot without saying the word vote. In this case "Chad Barefoot, the senator for Duke Energy, not us."

There is a third rule, what's known as the electioneering window. It's a period of time roughly 60 days prior to the primary and general election. If an outside group airs an ad or mails a flier that so much as mentions a candidate's name or shows his image, said Strach, "the statute clearly says an electioneering communication that is coordinated with a candidate becomes a contribution to that candidate."

Spaulding of Common Cause does applaud these measures but notes that there are 245 other days in an election year — not to mention plenty of off-year politicking.

"Certainly as our campaign cycles seem to grow and grow," said Spaulding, this kind of coordination "becomes more valuable to candidates."

California: Stamping Out Coordination

The Golden State is moving in the exact opposite direction and trying to stamp out coordination between candidates and outside groups.

In October, the California Fair Political Practices Commission decided to crack down on common tactics that outside groups use to communicate and strategize with candidates.

A relative might set up an independent group to support the candidate, who maybe will speak at one of its fundraisers. Perhaps they'll share political consultants. Or, a staffer "quits" the campaign only to join the outside group.

In another example of how campaigns and candidates avoid coordination rules, some campaigns will post videos online of the candidate shaking hands, looking decisive, smiling with a spouse, but there are no words. Independent groups then pull the footage and use it in outside ads.

Former Daily Show host Jon Stewart dubbed this "McConnelling" after Senate Majority Leader Mitch McConnell was one of the first seen using this tactic on the national stage.

"Are you kidding? That's not coordination?" asked Jodi Remke, the commission's chairwoman.

But Remke said even in these circumstances, coordination is difficult to prove, so California has stopped trying. Instead, when candidates and outside groups share consultants, relatives, staffers or fundraisers, the state now assumes they're working together and it's up to the outside groups to prove they're not.

"These coordination regulations will go a long way towards making sure that candidate contribution limits are more real," said former California enforcement agent Gary Winuk.

Hard To Enforce

Winuk spent years as California's top elections enforcement agent but remembers issuing only two fines for coordination.

"These were very, very difficult cases to prove. Everyone who's involved in them are all basically, obviously on the same team," said Winuk.

In one of these, state Sen. Luis Alejo's campaign manager also ran an independent group supporting him.

"And they literally were trying to say basically that their brain was separated in half. So in the morning they were running on one campaign but they would put all of that aside for the afternoon, and in the afternoon they were running the other campaign. Almost like they were evil twins together," said Winuk.

Critics say it further complicates already tangled election law.

"Let's keep something in mind, as long as there has been government, there has been money trying to influence politics and trying to influence politics, and there always will be," said Republican political consultant Mike Madrid.

Several states are moving this direction: Minnesota, Maryland, Connecticut, and Arizona have all tightened outside spending laws in the past two years.

Copyright 2015 NPR. To see more, visit NPR.