California has approved rules to better keep Super PACs in line.  The Fair Political Practices Commission has its eyes on the federal and other states’ election law controversies, noting in a press release that it is acting “on the heels of a national trend toward increased coordination between candidates and Independent Expenditure (IR) committees—a trend the FPPC seeks to stop.”  It wishes to enforce the “highest degree of separation that is constitutionally permissible “ to counter “new strategies being used by outside groups.”  Memorandum from Jack Woodside and Hyla Wagner, to Chair Remke and Commissioners, “Independent Expenditures: Adoption of Amendments to Regulation 18225.7” (October 5, 2015), at 3, 4.

The FPPC regulations already use “rebuttable presumptions” to identify the factual circumstances in which coordination is present or where there is good reason to suspect it. It has also provided for some exceptions—“safe harbors”– for certain contacts between candidates and the IE committee.  In the revised rules approved last week, the FPPC adds to the presumptions and to the safe harbors.

An example: the case of the candidate appearing at a PAC fundraising event, “thereby participating in the committee’s fundraising strategy.”  Reg.§18225.7(d)(5).  The concern, the staff advised the Commission, is “an obvious one—if the candidates raise unlimited funds for outside groups who, in turn, promote the candidate with the money raised, there are issues with the appearance of corruption and evasion of the limits on direct contributions.” Id. at 3.

The rules do not say how candidates can clear the hurdle and defeat the presumption. The Commission’s press release states simply that “when the known facts reasonably imply coordination,” the “burden of proof” falls on candidates to establish compliance. Ms. Wagner, counsel presenting the rules at the Commission meeting on October 15, indicated that the presumption may trigger “intense factual” inquiry into “actual coordination and communication.”  Yet the Woodside-Hyla memo suggests that the presumption is to be view as a “boundary marker” that constitutes the “legal line between those expenditures viewed as truly independent and those considered coordinated with a candidate or committee.”

This is confusing: in which way does the presumption work—as a “marker,”  identifying the where the legal line lies, or just the initial question after which there is to be extensive fact-finding?

In the case of the candidate who appears at a fundraising event, what would fact-finding look like?  The rule seems to assumes as a factual matter that a candidate’s speaking engagement at the event entails “participating in fundraising strategy.”  So it seems to block or largely disable the argument that she showed up and delivered the standard, anodyne remarks without sharing strategically valuable information about her campaign’s plans, projects and needs.  The very appearance may be enough to meet the coordination test.  In addition, and with seeming conclusiveness, the staff memo explaining the rule suggests that the candidate’s support for the PAC’s fundraising generates the appearance of corruption.  Id. at 3.

Or if somehow the only course open to the candidates is to deny one of the “known facts”—e.g. that she was not, in fact, present at the fundraising event, or did not deliver remarks—then the presumption is not especially robust.  It does not operate as a presumption about the strategic significance of the candidate’s contact with the committee.  It simply presumes something about the known facts, the implication of which appears settled, not really open to argument—unless there was a mistake about those facts.

Or it may be, and there is this suggestion in the staff memo, that the goal is to have a presumption work as a yellow warning light–to “dissuade” the committee and candidate from engaging in the activities that trigger the presumption. Id. at 4.  They can try to make their cases, but that carries costs, including legal costs.  And it would not be clear to them what they have to show or explain in order to prevail.