Indiana Law Review


Indiana Law Review
Volume 40 2007 Number 1

NOTES

Regulating Coordinated Communications:
How THE FEC Rules Restrict Business

Communications and Benefit Incumbents

Craig A. Defoe*

Introduction

Every two years business owners and executives and media personalities
attempt to make the transition to politics by running for federal office.
Overbroad campaign finance laws can hinder their success. Consider the owner
of a successful auto dealership. He stars in the dealership's local television
advertisements, which the dealership relies upon to bring in customers and stay
profitable. The owner enjoys selling cars, but he always wanted to try his hand
in the political arena, confident that his success selling cars would translate into

success on the campaign trail. His district's incumbent congressman seems

vulnerable, and he decides to run for Congress. However, during the campaign

the owner's business success becomes a liability. Though his dealership's
advertisements are unrelated to his congressional campaign, in the months before

the primary and general elections they could become campaign finance law
violations. If he continues to advertise for the dealership, he risks violating

campaign finance law and being labeled a cheater by the incumbent. If he ceases

advertising, he risks harming his dealership. The dealership owner is forced to
choose between selling cars and running for office. This situation is reality for

some federal candidates.'
The preceding scenario results from the coordinated communications rules

drafted and approved by the Federal Election Commission ("FEC"). The
Bipartisan Campaign Reform Act of 2002 ("BCRA") forced the FEC to broaden
the rules that restrict third parties from coordinating communications with federal

candidates.^ The FEC drafted over-inclusive rules, which now restrict federal

* J.D. Candidate, 2007, Indiana University School ofLaw—Indianapolis; A.B., magna cum
laude, 2004, Washington University, Saint Louis, Missouri. Recipient of the Papke Prize for Best

Note in Volume 40, endowed by and named in honor of David R. Papke, former R. Bruce
Townsend Professor of Law and faculty advisor to the Indiana Law Review.

L E.g., George Will, Editorial, Campaign Cops and CarAds, WASH. POST, Aug. 22, 2004,

at B7 (discussing the 2002 Wisconsin Senate candidate and dealership owner Russ Darrow).

2. Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, § 214(c), 1 16 Stat. 81,

95 (2002). The BCRA is popularly known as the McCain-Feingold Act. See Amy Keller,



120 INDIANA LAW REVIEW [Vol. 40: 1 19

candidates' legitimate business communications in situations similar to the one

recounted above.

The coordinated communications rules exist to prevent candidates from
recruiting third parties to pay for communications that serve as de facto political

advertisements. If a third party pays for a communication and coordinates it with

a federal candidate and circumstances indicate that it will influence a federal

election, it is considered a coordinated communication.^ Coordinated

communications are treated as campaign contributions to the federal candidate

involved, but if the third party otherwise is barred from making contributions, it
is barred from making the communications."^

Although these communications must be regulated to close a loophole, the

rules sweep too broadly. They bar some candidates' legitimate business
communications unrelated to the candidates' campaigns. Regulation of such

communications serves no legitimate government purpose, but harms candidates'

businesses and campaigns. This problem bypasses incumbents, whose
involvement with outside businesses is limited by their role as public servants.

However, the problem harms political outsiders who engage in business
communications while campaigning—usually challengers.

By barring the business communications of some challengers, the rules
impair these challengers' ability to benefit from their business experience and

prominence in the community. The rules can injure challengers' campaigns and
businesses and can dissuade potential challengers from entering a race. This

harm to challengers limits their access to the democratic process, thus benefiting
incumbents and further contributing to the incumbency advantage. In this way
the rules' overregulation unfairly disadvantages challengers and insulates

incumbents from constituents—damaging American democracy.
This problem demands a solution. The coordinated communications rules

should be redrafted to provide a safe harbor for legitimate business

communications. Such a change would prevent the rules' over-inclusion of

legitimate business communications and solve the problem.

Part I of this Note provides a brief overview of the problem presented by the

EEC's coordinated communications rules and identifies the class of candidates
for federal office likely affected by the problem. Part 11 explains why
coordinated communications are regulated, why the rules changed, and why the
EEC adopted the changed rules. Part III focuses on the language of the rules
drafted by the EEC following the passage of the BCRA and their effect on
candidates in subsequent election cycles. Part IV discusses the challenges made
to the post-BCRA rules in federal court and the resulting changes in the rules.
Part V discusses why this problem affects political outsiders, usually challengers,
and bypasses incumbents. Part VI exposes the extent of the incumbency
advantage and explains why that advantage conflicts with the democratic
principles of fairness and political accountability. Part Vn outlines the factors

Campaign Reform Foes Cheered by Minnesota Case, ROLL CALL, July 11, 2002.

3. Coordinated and Independent Expenditures, 1 1 C.F.R. § 109.21 (2005).

4. Id. § 109.22.



2007] REGULATING COORDINATED COMMUNICATIONS 1 2

1

contributing to the incumbency advantage, and shows how the rules harm
challengers by preventing them from counteracting some of those factors.
Finally, Part VIII explains how the FEC could solve this problem by adopting
rules that explicitly exclude legitimate business communications from regulation.

I. Introducing THE Problem

A. The Coordinated Communications Rules in Brief

The BCRA forced the FEC to broaden the rules on coordinated
communications—which it accomplished by creating a three-pronged test to
judge whether a communication was coordinated.^ That test looks at who paid
for the communication (the "payment prong"), the content of the communication

(the "content prong"), and the conduct of the parties who potentially coordinated
on the communication (the "conduct prong").

^

The payment prong is satisfied when a party other than the candidate or her
campaign pays for the communication.^ Thus, when a candidate's business or
employer pays for an advertisement, the payment prong is satisfied. The content
prong is satisfied when the communication is public, mentions a candidate for
federal office, is directed to voters in that candidate's district, and is made within
120 days of an election.^ Consequently, if a business owner is running for
federal office and appears in the businesses advertisements, then those

advertisements likely satisfy the content prong when aired within several months
of an election. Finally, the conduct prong is satisfied when a candidate or her
campaign is materially involved with the third party in the making or distribution

of the communication.^ If a candidate is materially involved in her business'

s

public communications, then the conduct prong is satisfied.

B. The Affected Federal Candidates

As the brief explanation above indicates, the coordinated communications
rules can affect some communications entirely unrelated to federal elections. For
example, this problem arises when a federal candidate owns a business or
occupies a high-ranking position therein and that business bears the candidate's

name. If that business relies on advertising, as so many do, it may find itself
hamstrung by these rules. Similarly, if a candidate's occupation regularly

involves public communications—whether on television, in print, or
otherwise—his job may become illegal in the months before the primary and
general elections.

This problem results from the language of the content prong—it does not

5. Id. § 109.21(a).

6. Id.

1. Id. § 109.21(a)(1).

8. Id. § 109.21(c)(4).

9. Id. § 109.21(d)(2).



122 INDIANA LAW REVIEW [Vol. 40:119

require that the communication actually involve a federal election.'^ It presumes

that when the payment and conduct prongs are satisfied, and the public
communication mentions a federal candidate, is directed to that candidate's

voters, and is made within 120 days of an election, then the communicator
intends to influence a federal election. '^ However, as noted above, some
candidates and their legitimate business communications disprove that

presumption.

In such situations, the rules have several effects: (1) they could harm a
candidate's campaign by reducing his status within the community; (2) they

could harm a candidate's business or professional life by forcing him to curtail
his professional obligations and business operations for a chance to run for

federal office; and (3) they could prevent an aspiring candidate from entering a

federal race. In summary, the EEC rules on coordinated communications
potentially harm a candidate's business life, professional life, and campaign. ^^

They could also reduce the candidate pool. One common theme runs between all
these potential effects: challengers are harmed and incumbents benefit.

II. Reasons Behind THE Rules

A. The Purpose ofRegulating Coordinated Communications

The Federal Election Campaign Act ("FECA") imposes a set of campaign
contribution limitations on individuals, political parties, and political action

committees. '^ Such limitations are permissible in order to "limit the actuality and

appearance of corruption" in federal elections. ^"^ However, those entities could

circumvent the contribution limitations by coordinating political advertising with

third parties who also pay for the advertising, rather than purchasing the
advertising directly. FECA's coordinated communications rules seek to close
this loophole by treating such coordinated communications as contributions.^^

In the landmark decision, Buckley v. Valeo, the Supreme Court noted that

treating coordinated expenditures as contributions would "prevent attempts to

circumvent the Act through prearranged or coordinated expenditures amounting

10. Id. § 109.21(c)(4).

11. Id.

12. This problem also raises First Amendment concerns due to the potential limitations on

business speech. That problem intensifies when media-related business is involved. This Note will

not address the free speech issues raised by the rules' over-inclusion of business communications.

However, the rules' free speech implications have been addressed elsewhere. See James Bopp, Jr.

& Heidi Abegg, The Developing Constitutional Standardsfor "Coordinated Expenditures": Has
the Federal Election Commission Finally Found a Way To Regulate Issue Advocacy?, 1 ELECTION

L.J. 209 (2002).

13. 2 U.S.C. § 44 1 a (2005); see also FederalElectionCommission, ContributionLimits

2005-06, http://www.fec.gov/pages/brochures/contriblimits.shtml.

14. Buckley v. Valeo, 424 U.S. 1, 26 (1976).

15. 11 C.F.R. § 100.52(d) (2005).



2007] REGULATING COORDINATED COMMUNICATIONS 123

to disguised contributions."*^ Again in 2003, the Court in McConnell v. FEC
reaffirmed the view that tighter regulation of coordinated communications

prevents actual and apparent corruption, noting, "[T]here is no reason why
Congress may not treat coordinated disbursements for electioneering
communications" as contributions.'^ Thus, the FEC regulates coordinated
communications in order to close what would otherwise be a gaping loophole in
the current regulatory scheme.

B. The Purpose of Changing the Rules

Little more than a year before the passage of the BCRA, the FEC adopted
new coordinated communications rules. '^ The FEC drafted these pre-BCRA
rules in response to a district court decision calling the EEC's interpretation of
coordination "overbroad."'^ The court limited the definition of coordination to
cases involving "substantial discussion or negotiation between the campaign and

the spender."^^

The BCRA rejected this narrow coordination standard by repealing the prior
set of coordinated communications rules.^* It directed the FEC to "promulgate
new regulations on coordinated communications paid for by persons other than
candidates, authorized committees of candidates, and party committees."^^

However, it offered only minimal guidance to the FEC for redrafting the rules.
It provided only that "[t]he regulations shall not require agreement or formal

collaboration to establish coordination."^^

16. Buckley, 424 U.S. at 47. In rejecting a provision of FECA that limited independent
expenditures "for express advocacy of candidates made totally independently of the candidate and

his campaign," the Court noted:

Unlike contributions, such independent expenditures may well provide little assistance

to the candidate's campaign and indeed may prove counterproductive. The absence of

prearrangement and coordination of an expenditure with the candidate or his agent not

only undermines the value of the expenditure to the candidate, but also alleviates the

danger that expenditures will be given as a quid pro quo for improper commitments

from the candidate.

Id.

17. McConnell v. FEC, 540 U.S. 93, 104 (2003).

18. General Public Communications Coordinated with Candidates and Party Committees;

Independent Expenditures, 65 Fed. Reg. 76,138, 76,138-47 (Dec. 6, 2000) (to be codified at 11

C.F.R.pts. 100,109, 110).

19. FEC V. Christian Coalition, 52 F. Supp. 2d 45, 90 (D.D.C. 1999).

20. Id. at 92.

21. Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, § 214(c), 1 16 Stat. 81,

95 (2002).

22. Id.

23. Id. The BCRA also directed the FEC to address several specific situations in the rules,
including:

(1) payments for the republication of campaign materials; (2) payments for the use of



124 INDIANA LAW REVIEW [Vol. 40:119

While lacking detail, this BCRA provision represented Congress's intent to
expand the definition of coordinated communications.^'^ Such an expansion was

apparently necessary to ensure that candidates and parties did not use de facto

coordination to circumvent the BCRA's new ban on soft money.^^ According to
Senator John McCain, one of the bill's sponsors, this provision "represents a

determination that the current EEC regulation is far too narrow to be effective in
defining coordination in the real world of campaigns and elections and threatens

to seriously undermine the soft money restrictions contained in the bill."^^
Congress determined such an expansion of the rules was necessary because of
their ineffectiveness in prior elections. For example, claims that members of the
"labor and business communities had 'coordinated' massive expenditures,

illegally, with candidates and political party committees" surfaced after the 1996

election cycle.^^

C The Purpose of the Three-Pronged Approach
After settling on the three-pronged approach to regulating coordinated

communications pursuant to the BCRA directives, the FEC published a lengthy
explanation and justification of the rulemaking process and the final rules.^^ In

a very general sense, the FEC explained that "the satisfaction of all three prongs
of the test . . . justifies the conclusion that payments for the coordinated

communication are made for the purpose of influencing a Federal election, and
therefore constitute in-kind contributions."^^ Of course, the extent to which that
statement is true is the subject of this Note and was the subject of several public

comments received by the FEC in the rulemaking process. ^°

Only two of the seven public commenters supported the three-pronged

approach, while the other five argued that the FEC should "emphasize the actual

a common vendor; (3) payments for communications directed or made by persons who

previously served as an employee of a candidate or a political party; and (4) payments

for communications made by a person after substantial discussion about the

communication with a candidate or a political party.

Id.

24. 148 Cong. Reg. S2096, 2144 (daily ed. Mar. 20, 2002) (statement of Sen. Feingold)

("This current FEC regulation fails to cover a range of de facto and informal coordination between

outside groups and candidates or parties that, if permitted, could frustrate the purposes ofthe bill.").

25. Id.

26. Id. at 2145 (statement of Sen. McCain).

27. Robert F. Bauer, The McCain-Feingold Coordination Rules: The Ongoing Program to

Keep Politics Under Control, 32 FORDHAM Urb. L.J. 507, 512 (2005).

28. Coordinated and Independent Expenditures, 68 Fed. Reg. 421 (Jan. 3, 2003) (to be

codified at 1 1 C.F.R. pts. 100, 102, 109, 1 10, 1 14).

29. Mat 426.
30. Id. The public comments received during the rulemaking process may be found at:

Federal Election Conunission, Comments on This Rulemaking, http://www.fec.gov/pdf/nprm/coor_

and_ind_expenditures/comments.shtml (last visited May 21, 2006).



2007] REGULATING COORDINATED COMMUNICATIONS 125

conduct and minimize the importance of any content standard."^ ^ Those five

commenters, including the BCRA's principal sponsors, apparently believed that
the focus on content would make the rules under-inclusive.^^ The FEC
acknowledged that the content prong could "exclude some communications that
are made with the subjective intent of influencing a Federal election."^^ Still, the
FEC kept the content prong because "it helps ensure that the coordination
regulations do not inadvertently encompass communications that are not made
for the purpose of influencing a federal election.

"^"^

Commenter support for the specific content standards varied. Several
commenters urged the FEC to look at what the communications actually say,
rather than "'external criteria' such as the timing or distribution of the

communication."^^ For example, the Democratic National Committee argued:
"The farther the standard strays from a secure mooring in 'express advocacy,' the
more complex—and constitutionally frail—the application of the coordination
rule."^^ The FEC disagreed. It was confident the final content standards "all
provide bright-line tests and subject to regulation only those communications

whose contents, in combination with the manner of its creation and distribution,
indicate that the communication is made for the purpose of influencing the
election of a candidate for Federal office."^^ Despite that assurance from the

FEC, few laws or rules are tailored perfectly to the problem they address, and the
coordinated communications rules are no exception.

m. The Coordinated Communications Rules Explained

A. Post-BCRA Rules

After the BCRA became law, the FEC began an expedited rulemaking
process culminating in the passage of new coordinated communications rules in
early 2003.^^ The new rules employed a three-pronged test to determine whether
communications were coordinated.^^ Coordinated communications were defined

as follows:

A communication is coordinated with a candidate, an authorized

3 1

.

Coordinated and Independent Expenditures, 68 Fed. Reg. at 426.

32. Id.

33. Id.

34. Id.

35. Mat 428.
36. Letter from Democratic National Committee, Democratic Senatorial Campaign

Committee, and Democratic Congressional Campaign Committee to John Vergelli, Acting Assistant

General Counsel, Federal Election Commission 4 (Oct. 11, 2002), http://www.fec.gov/pdf/nprm/

coor_and_ind_expenditures/dnc.pdf.

37. Coordinated and Independent Expenditures, 68 Fed. Reg. at 428.

38. Coordinated and Independent Expenditures, 68 Fed. Reg. at 421.

39. Coordinated and Independent Expenditures, 1 1 C.F.R. § 109.21(a), amended by 1\ Fed.

Reg. 33,190(2005).



126 INDIANA LAW REVIEW [Vol. 40:119

committee, a political party committee, or an agent of any of the

foregoing when the communication:

(1) Is paid for by a person other than that candidate, authorized

committee, political party committee, or agent of any of the foregoing;

(2) Satisfies at least one of the content standards in paragraph (c) of this

section; and

(3) Satisfies at least one of the conduct standards in paragraph (d) of this

section.
^°

Thus, a communication is considered coordinated if it satisfies the payment

prong from subparagraph one, the content prong from subparagraph two, and the

conduct prong from subparagraph three. The payment prong contains the least
ambiguity of the three; it simply includes all communications not paid for by the

candidate or his committee. The content and conduct prongs, however, require
further explanation.

The content prong is satisfied when one of several content standards is met.
For example, if a communication republishes the candidate' s campaign material,

promotes the election or defeat of a candidate, or qualifies as an electioneering

communication,"^^ then it satisfies the content prong."^^ However, the fourth and

most relevant content standard includes:

A communication that is a public communication, as defined in 1 1 CFR
100.26, and about which each of the following statements in paragraphs

(c)(4)(i), (ii), and (iii) of this section are true.

(i) The communication refers to a political party or to a clearly
identified candidate for Federal office;

(ii) The public communication is publicly distributed or otherwise
publicly disseminated 120 days or fewer before a general, special,

or runoff election, or 120 days or fewer before a primary or

preference election, or a convention or caucus of a political party

that has authority to nominate a candidate; and

40. Id.

41. Electioneering communications are defined as:

any broadcast, cable, or satellite communication that:

(1) Refers to a clearly identified candidate for Federal office;

(2) Is publicly distributed within 60 days before a general election for the office sought

by the candidate; or within 30 days before a primary or preference election, or a

convention or caucus of a political party that has authority to nominate a candidate, for

the office sought by the candidate, and the candidate referenced is seeking the

nomination of that political party; and

(3) Is targeted to the relevant electorate, in the case of a candidate for Senate or the

House of Representatives.

Id. § 100.29(a). The FEC recently amended the definition of electioneering communications.

Electioneering Communications, 70 Fed. Reg. 75,713 (Dec. 21, 2005) (to be codified at 1 1 C.F.R.

pt. 100).

42. 1 1 C.F.R. § 109.21(c).



2007] REGULATING COORDINATED COMMUNICATIONS 1 27

(iii) The public communication is directed to voters in the
jurisdiction of the clearly identified candidate or to voters in a

jurisdiction in which one or more candidates of the political party
appear on the ballot."*^

The fourth content standard refers to public communications, which are defined
as

communication by means of any broadcast, cable or satellite
communication, newspaper, magazine, outdoor advertising facility, mass

mailing or telephone bank to the general public, or any other form of
general public political advertising. The term general public political
advertising shall not include communications over the Intemet.'^'^

Although the PEC calls these "content standards," that is a misnomer. The fourth
content standard ignores the content of the communication, instead focusing on

outside criteria like the communication's timing and audience."^^

The relevant conduct standards cover the following types ofcommunication:
those made at the "request or suggestion" of the candidate, those "assented to"
by the candidate, those in which the candidate had "material involvement," and

those about which the candidate engaged in "substantial discussion."'^^ True to

the language of the BCRA, the rules also note that communications may fall
under these content standards "whether or not there is agreement or formal

collaboration.""^^

By definition, any communication that satisfies this three-pronged test "is
made for the purpose of influencing a federal election, and is an in-kind

43. Id. § 109.21(c)(4).

44. Id. § 100.26. The exemption for internet communications in this definition has been the

subject of litigation, legislation, and rulemaking. See Shays v. FEC, 337 F. Supp. 2d 28, 111

(D.D.C. 2004), ajf'd, 414 F.3d 76 (D.C. Cir. 2005); Rick Klein, Internet Campaign Exemption

Defeated, BOSTON GLOBE, Nov. 3, 2005, at Al; Internet Communications, 70 Fed. Reg. 16,967

(Apr. 4, 2005) (to be codified at 1 1 C.F.R. pts. 100, 1 10, and 1 14).

45. 11 C.F.R. § 109.21(c)(4).

46. Id. § 109.21(d). Specifically, regarding material involvement, the conduct prong is met

when:

A candidate ... is materially involved in decisions regarding:
(i) The content of the communication;

(ii) The intended audience for the communication;

(iii) The means or mode of the communication;

(iv) The specific media outlet used for the communication;

(v) The timing or frequency of the communication; or

(vi) The size or prominence of a printed communication, or duration of a

communication by means of broadcast, cable, or satellite.

Id. § 109.21(d)(2). Thus, if a candidate helped create or appears in her business 's communications,

then she almost certainly was materially involved with the communication.

47. Id. § 109.21(d).



128 INDIANA LAW REVIEW [Vol. 40:119

contribution under 11 C.F.R. 1 00.52(d). '"^^ Furthermore, the rules provide that

"[a]ny person who is otherwise prohibited from making contributions or
expenditures under any part of the Act or Commission regulations is prohibited
from paying for a coordinated communication.'"*^ Corporations are prohibited

from making federal campaign contributions or expenditures, including

"anything of value."^^ Thus, corporations are barred from making coordinated

communications.

Taken alone, the rules on coordinated communications appear daunting. The
simple three-prong test becomes more complicated with each additional sub-
prong and cross reference. However, the rules are clarified by their application

to actual federal campaigns. Those campaigns also show how the rules restrict
business communications.

B. The Rules in Action

The new rules first affected the 2004 federal election cycle and produced
similar effects in the 2006 cycle. These election cycles offer several examples

of the problem this Note addresses—the rules' over-inclusion of legitimate
business communications. Several federal candidates were involved in

businesses in which they regularly engaged in public communications. Those

business-related public communications satisfied the payment prong because they

were paid for by the business rather than the candidate.^' In addition, the

communications threatened to satisfy the content prong by triggering the fourth

content standard, which covers communications that refer to a federal candidate,

and are directed at the relevant electorate before an election.^^ Finally, if the

candidate was "materially involved" in his business' s public communications,

then the conduct prong was satisfied.^^
Russ Darrow ran for U.S. Senate in Wisconsin in 2004. Ironically, he sought

to unseat incumbent and BCRA sponsor, Russ Feingold.^"* Darrow founded a
large automotive group bearing his name, which relied on public advertising.^^

Because those television and radio advertisements mentioned the candidate

Darrow' s name, "the automotive group . . . worried that the ads would have to be

taken off the air."^^ Their worries were legitimate; in July 2004 a spokesman for

the FEC warned, "*[i]t would appear as if such (car) advertisements might be

48. Id. § 109.21(b).

49. Id. § 109.22.

50. CorporateandLaborOrganization Activity, 11 C.F.R. §§ 114.1(a), 114(b)(1), 114(b)(2).

51. 1 1 C.F.R. § 109.21(a)(1).

52. Id. § 109.21(c)(4),

53. Id. § 109.21(d).

54. Graeme Zielinski, Folksy Style Has Served Him Well; Car Salesman Darrow Deals to

Voters, Milwaukee J. Sentinel, Sept. 10, 2004, at IB.

55. Id.

56. Graeme Zielinski, State Group Pressing Case Against McCain-Feingold, MILWAUKEE

J. Sentinel, Aug. 12, 2004, at lA.



2007] REGULATING COORDINATED COMMUNICATIONS 1 29

considered electioneering communications,' and thus prohibited."^^ A Wisconsin
newspaper and pundit George Will editorialized against such a prohibition as the

controversy grew.^^ Eventually Darrow requested an advisory opinion from the
EEC, which allowed the advertisements based on a fact-intensive analysis
hinging on the fact that Darrow did not speak or appear in the advertisements.^^
That controversy involved the narrower determination of whether the ads were

electioneering communications.^^ Nonetheless, because the electioneering

communications satisfy the content prong and because their definition mirrors the

fourth content prong, the dealership advertising implicated the coordinated

communications rules.^'

Additionally, Pete Coors, of Coors Brewing Company fame, ran for
Colorado's open Senate seat in 2004 against the state's Attorney General, Ken
Salazar.^^ During his campaign he planned to "remain firmly at the helm of both
the holding company and subsidiary Coors Brewing even though he wo[uld]n't
be getting paid."^^ Prior to the campaign Coors regularly appeared in beer

commercials, touting Coors beer.^"^ But in Colorado, the advertisements could

have ran "afoul of . . . the McCain-Feingold Act . . . even if the commercials

make no mention of the candidacy."^^ Thus, the company pulled the
advertisements.^^ Still, on the eve of the election, Coors was criticized when the
brewery ran ads defending its corporate name.^^ A political watchdog group
labeled the advertisements "an attempt to help Pete Coors win election to the

Senate," and tried to persuade the brewery to pull them.^^ The brewery defended
the advertisements and denied coordinating them with Coors' campaign.^^ Coors

lost to Salazar in the general election.^^

The problem arose again in the 2006 election cycle. Andy Mayberry chose
to run against the Democrat incumbent in Arkansas's second congressional

57

.

Graeme Zielinski, Name Recognition Cuts Both Ways For Darrow; Campaign LawMay

Limit Car Dealership Ads, MILWAUKEE J. SENTINEL, July 9, 2004, at 1 A.

58. Editorial, Common-Sense Campaigns, MILWAUKEE J. SENTINEL, July 12, 2004, at lOA;

see also Will, supra note 1

.

59. 2004 Op. Fed. Election Comm'n 3 1 (2004).

60. Id.

61. See 11 C.F.R. §§ 109.21(c)(4), 100.29 (2005).

62. T.R. Reid, Democrats May Use Results in Colorado as Political Primer, WASH. POST,

Nov. 21, 2004, at A18.

63. John Accola, Coors to Remain at Helm of Brewery—At No Pay; Company Denies
Candidacy Means Family Stepping Back, ROCKY Mtn. NEWS, Apr. 13, 2004, at IB.

64. Id.

65. Id.

66. Id.', Political Notes, WHITE HOUSE BULLETIN, Apr. 13, 2004; Will, supra note 1.

67. Rachel Brand & David Kesmodel, Timing of Coors Co. Ads Called Improper, RoCKY
Mtn. News, Oct. 30, 2004, at 3C.

68. Id.

69. Id.

70. Reid, supra note 62.



130 INDIANA LAW REVIEW [Vol. 40: 1 19

district.^' He co-owned two periodicals in which he regulariy wrote editorials
and commentaries.^^ Mayberry requested an advisory opinion from the PEC
regarding his ability to continue publishing the periodicals and writing

editorials.^^ The EEC found that he could continue publishing the periodicals and
that the news pieces would be exempted from regulation. ^"^ However, the
communications were paid for by Mayberry' s business, satisfying the payment

prong.^^ Additionally, the fact that Mayberry was "simultaneously, the author of
the opinion columns in the Periodicals, the editor of the Periodicals, and a

candidate for Federal office" satisfied the conduct prong.^^ Thus, the rules barred

any of Mayberry' s editorials that satisfied the content standard—including any
expressly advocating the election or defeat of a federal candidate and any with

Mayberry' s byline or picture published within 120 days of an election.^^

The EEC restrictions quickly took their toll on Mayberry' s business. He sold
his newspaper in order to "avoid various conflicts that could arise" regarding the

rules.^^ That sale "negatively impacted by a substantial amount" his personal

financial situation.^^ In addition, the rules forced Mayberry to make some
changes to the magazine he published to prevent any potential violation.^^

Yet another example of this problem arose during the 2006 election cycle.

Mike Whalen ran for an open House seat in Iowa, but in the Republican primary
his business communications angered opponents.^' Whalen founded and owned
a small chain of restaurants, which was "a central part of his personal history and

has been integrated into his congressional campaign."^^ Whalen ran a television
advertisement for his restaurants in which he was "feature[d] . . . prominently."*^
Whalen's primary opponent filed a complaint with the EEC regarding the
advertisement, alleging that "[t]he themes in the corporate advertising

prominently featuring Whalen and the theme put forward by the campaign have
been nearly identical."^"^ Thus, the complaint alleged, "[s]uch activity is a

71. Formicola Planning to Runfor Congress, ARK. Democrat-Gazette, Dec. 31, 2005.

72. 2005 Op. Fed. Election Comm'n 7 (2005).

73. Id.

74. Id.

75. Id.

76. Id.

11. Id.

78. E-mail from Andy Mayberry, Candidate, Arkansas 2nd Congressional District, to author

(Jan. 12, 2006, 1 1:27 EST) (on file with author) [hereinafter Mayberry E-mail].

79. Id.

80. Id.

81. Alexander Bolton, Candidates to Replace Nussle in a Tussle Over Television Ad, THE

Hill, Dec. 6, 2005, at 3.

82. Ed Tibbetts, TV Ads Become Issue In Campaign, QUAD-Crrv TIMES, Nov. 12, 2005,

ava//aWe<3rhttp://www.qctimes.net/articles/2005/ll/12/news/local/doc437582delc25d9196464

95.txt.

83. Bolton, 5M/?ra note 81.

84. Letter ft-om Carol Earnhardt, Manager, Brian Kennedy for Congress, to Scott E. Thomas,



2007] REGULATEsfG COORDINATED COMMUNICATIONS 1 3

1

calculated effort to evade the strict prohibition on corporate contributions to

federal campaigns and has resulted in illegal corporate contributions and illegal

coordinated communications."^^ This case remains unresolved.

These situations illustrate the problem created by over-inclusive coordinated

communications rules. Business owners and executives and media personalities

often choose to run for political office. But if the business is engaged in

advertising (as many are) or other public communications, and if the business
shares its name with the candidate or the candidate appears in the advertising,
then the content prong is triggered. With the payment and conduct prongs also
easily satisfied in such situations, a candidate is forced to choose between her

business or her campaign.

The rules' over-inclusion of business communications creates a recurring
problem. The candidates discussed above show that in every election cycle
federal candidates will see their business communications proscribed by the

coordinated communications rules. Perhaps only a handful of candidates per

election cycle will be affected in this way, but those situations are neither

isolated nor anomalous. Because federal elections attract high-profile

challengers, the problem will recur.

The coordinated communications rules will restrict the business
communications of many additional federal candidates. The Supreme Court
observed that many challengers are "well known and influential in their
community or state. "^^ Surely many challengers establish such repute and
influence in their community by virtue of their business-related public
communications. The above-noted candidates were all involved with the media
or business advertising. However, Andy Mayberry was not the only federal
candidate with a business and media background.^^ Russ Darrow, Pete Coors,

Chairman, Federal Election Commission 2 (Nov. 30, 2005), http://www.briankennedy.com/news/

2005 11 30.pdf [hereinafter Earnhardt Letter].

85. IdsAl.

86. Buckley v. Valeo, 424 U.S. 1, 32 (1976).

87. One notable federal candidate faced with similar problems, albeit under a prior version

of the rules, was Steve Forbes. Forbes owned a majority interest in and was CEO of Forbes Inc.,
the publisher ofForbes Magazine. Kenneth A. Gross, Steve Forbes: Candidate orJournalist?, THE

Hell, Sept. 23, 1998, at 30. When running for president in 1996 Forbes continued to author a

column in the magazine. Id. The FEC initially viewed those columns as "prohibited corporate

contributions to the campaign." FED. ELECTIONComm'n,MUR4305—FIRSTGENERALCOUNSEL'S
Report3 ( 1 996), available at http://eqs.nictusa.com/eqsdocs/ 000039EF.pdf. The FEC eventually

brought suit against Forbes, but chose to withdraw from the suit in 1999. FED. ELECTION COMM'N,

Statement of Reasons For Voting to Withdraw the Commission's Complaint in FEC v.
Forbes, ET. al 1 (1999), available at http://eqs.nictusa.com/eqsdocs/ 00003A06.pdf [hereinafter

FEC V. Forbes Withdrawal].
Indiana produced another media personality turned politician. Before successfully running

for Congress in 2000, Mike Pence hosted his own talk radio program in east-central Indiana named

The Mike Pence Show. Danielle Knight, AndNow, Batting Right, U.S. NEWS&WORLD REP., Apr.
24, 2006, at 26-27.



132 INDIANA LAW REVIEW [Vol. 40:119

and Mike Whalen were not the only candidates controlling businesses that bear
their names.^^ Other federal candidates affected in similar ways included a radio
program host and a named partner in a law firm engaged in advertising.^^ Any
candidate who regularly engages in business-related public communications
could be affected, including many business owners and professional practitioners
who rely on advertising, media personalities, and others. Every two years all
members of the House and one-third of the members of the Senate are up for re-
election.^® Future elections will see many more cases of federal candidates
adversely affected by the coordinated communications rules.

rv. Changes IN THE Rules

A. BCRA Sponsors' Dissatisfaction with the Rules

Although this Note argues that the coordinated communications rules are

over-inclusive, the principal sponsors of BCRA felt the opposite. They thought
the new rules were under-inclusive and voiced their dissatisfaction early on.
They urged the PEC to "emphasize the actual conduct and minimize the
importance of any content standard."^' They feared that the content prong would
render the rules under-inclusive, arguing that the payment and conduct prongs

alone were sufficient to infer coordination.^^

The PEC rejected that argument,^^ but the sponsors revived it soon thereafter
in Shays v. FEC?^ Christopher Shays, a principal sponsor of the BCRA in the
House of Representatives, and another sponsor challenged the EEC's final rules
on coordinated communications.^^ Shays specifically attacked the content prong,

arguing that the 120-day limitation was insufficient because it would allow

coordinated communications outside of that timeframe as long as they did not

constitute "express advocacy" or republication of campaign materials.^^ The
district court agreed, finding that the BCRA was meant to "enlarge the concept

88. Eric Dickerson, owner of Eric Dickerson Buick in Indianapolis (not the famed NFL
running back), faced a situation similar to Russ Darrow's. See Eric Dickerson Buick,

http://www.ericdickerson.com (last visited May 19, 2(X)6). He decided to challenge a popular

Democratic congressional incumbent. Matthew Tully, Carson 's Foe HasA Colt's Name, Edgy Fan

Base, INDIANAPOUS Star, May 12, 2(X)6. He won the Republican primary in 2(X)6 with the help

of his business experience and recognizable name. Id. But he still faced long odds against the

popular Democratic incumbent. Id.

89. FEC V. Forbes Withdrawal, supra note 87, at 4-5.

90. U.S. Const, art. I, § 2, cl. 1 ; U.S. Const, amend. XVII.

91. Coordinated and Independent Expenditures, 68 Fed. Reg. 426 (Jan. 3, 2(X)3) (to be

codified at 11 C.F.R. pts. 100, 102, 109, 110, 114).

92. Id. 2a ATI.

93. Id.

94. 337F. Supp.2d28(D.D.C.2004),a#U414F.3d76(D.C.Cir.2005).

95. Mat 38.
96. Mat 57.



2007] REGULATING COORDINATED COMMUNICATIONS 1 33

ofwhat constitutes ^coordination' under campaign finance law."^^ Thus, the 120-

day limitation in the content prong "would create an immense loophole that
would facilitate circumvention of the Act's contribution limits, thereby creating

*the potential for gross abuse.
'"^^ The court ordered the PEC to rewrite the rules

on coordinated communications.^^

The EEC appealed Shays to the District of Columbia Circuit, which in 2005
affirmed the district court holding regarding coordinated communications.'^ In

affirming, the circuit court found that a content prong was permissible, but that
the 120-day window was without sufficient justification.'^' It instructed the EEC
to more "carefully consider" where to draw the line regarding the content of the
communications in order to prevent "evasion of campaign finance restrictions

through unregulated collaboration."'"^ The EEC petitioned for a rehearing en
banc with the circuit court on August 25, 2005,'"^ which was denied in October
2005.'"^

B. Post-ShdLys Changes to the Rules

After the court denied the EEC's request for a rehearing, the EEC proceeded
with the rule changes mandated by the Shays decisions.'"^ Initially, the EEC
sought public comments on seven different alternatives for the new content prong
of the coordinated communications rules. '"^ The Commission later sought a
second round of public comments regarding data it gathered on the timing of
campaign advertisements in federal elections.'"^ The rulemaking process

97. Id. Sit 64.

98. Id. at 65 (quoting Orloski v. FEC, 795 F.2d 156, 165 (1986)). The district court

invalidated the rules "pursuant to step two of the Chevron analysis." Id. The Chevron analysis

involves a two step inquiry:

At step one, we inquire whether Congress "has directly spoken to the precise question

at issue," in which case "we must give effect to the unambiguously expressed intent of

Congress." If the statute is silent or ambiguous on the issue we will defer at step two

to any reasonable agency interpretation.

Castro V. Chicago Hous. Auth., 360 F.3d 721, 727 (2(X)4) (citations omitted) (citing Chevron

U.S.A. Inc. V. Natural Res. Def. Counsel, Inc., 467 U.S. 837, 842-43 (1984)).

99. 5;ia>'5, 337F. Supp. 2datl30.

100. Shays V. FEC, 414 F.3d 76, 102 (2005).

101. Id.

102. Id

1 03

.

Press Release, Federal Election Commission, FEC Files Petition For Rehearing in Shays

V. FEC (Aug. 29, 2005), http://www.fec.gov/press/press2005/20050829Shays Rehearing.html.
104. Alexander Bolton, It's Back to Square Onefor the FEC, THE HiLL, Oct. 25, 2005, at 1

.

105. Press Release, Federal Election Commission, FEC Describes Plans for Rulemakings

(Nov. 3, 2005), http://www.fec.gov/press/press2005/20051 103shays.html.

106. Coordinated Communications, 70 Fed. Reg. 73,946 (Dec. 14, 2005) (to be codified at 1

1

C.F.R. pt. 109).

107. Press Release, Federal Election Commission, FEC Seeks Comment on Political



134 INDIANA LAW REVIEW [Vol. 40: 1 19

concluded on April 7, 2006 at an open meeting of the Commission. At that

meeting the commissioners hammered out compromises between two dueling
final rule proposals. ^^^ The changes adopted at that meeting will have little, if
any, effect on the underlying problem at issue: over-inclusion of legitimate

business communications.

C The Problem Persists
The rules will continue to restrict legitimate business communications

because the FEC failed to either address or remedy the problem at issue. '°^ The
three-prong approach remains with few substantive changes to any of the prongs.

Most of the changes adopted by the FEC will not touch the parts of the rules that
create this problem. For example, the rules now stipulate that the conduct prong
is not satisfied by substantial discussion between the third party and the

candidate if the third party used publicly available information for the

communication. ^^^ The commission also created a safe harbor allowing
candidates to endorse each other and convey those endorsements in public

communications. ^ ^ * Though these changes should reduce the rules' overall level
of over-inclusion, they fail to address the main problem.

The content prong underwent only minor changes. The fourth content

standard now differentiates between presidential and congressional races. For
presidential races, the content prong still is satisfied by public communications

within 120 days of an election which refer to a clearly identified candidate and

target the relevant electorate.'*^ For congressional races, that 120-day window
before election is reduced to ninety days.**^ Such a slight reduction in the reach

of the content prong will have little effect on the problem. For three months

Advertising Data in Coordination Rulemaking (Mar. 13, 2006), http://www.fec.gov/press/

press2006/200603 1 3coord.html.

1 08

.

Fed. ElectionComm'n, AgendaDocumentNo. 06-27, Minutes ofanOpenMeeting

oftheFederalElectionCommission (Apr. 7, 2006) [hereinafter Minutes]; Memorandum from

Vice Chairman Robert D. Lenhard, Comm'r Steven T. Walther & Comm'r Ellen L. Weintraub to
the Fed. Election Comm'n, Agenda Document No. 06-26 (Apr. 7, 2006), available at http://www.

fec.gov/agenda/2006/mtgdoc06-26.pdf [hereinafter Proposed Rules].

109. Minutes, supra note 108; see also Bob Bauer & Donna Lovecchio, The FEC Has
Promulgated New "Coordination" Rules, MORE SOFT MONEY HARD LAW, Apr. 7, 2006,
http://www.moresoftmoneyhardlaw.com/updates/federal_candidates_officeholders.html?AID=682.

1 10. Proposed Rules, supra note 108, at 4, 6-7.

111. Minutes, supra note 108, at 6-7; Proposed Rules, supra note 108, at 8. The FEC

approved other changes to the rules that will not affect this problem. Bauer & Lovecchio, supra
note 109.

1 12. Bauer & Lovecchio, supra note 109; MINUTES, supra note 108, at 4.
1 13. Bauer & Lovecchio, supra note 109; MINUTES, supra note 108, at 4. This change was

accompanied by a slight change in the structure of the fourth content prong. That prong is now

broken down by the nature of the regulated party, rather than by the individual content

requirements. Proposed Rules, supra note 108, at 2.



2007] REGULATING COORDINATED COMMUNICATIONS 1 35

before the primary election and three months before the general election the rules

will continue to swallow legitimate business communications.

Although the Commission failed to remedy this problem, its willingness to
address other over-inclusion problems offers hope. The EEC acted within
BCRA's congressional mandate to narrow the scope of the rules, even though the
BCRA sponsors initiated the Shays litigation in order to broaden the rules. The
EEC should create another safe harbor for legitimate business communications,
as it did for candidate endorsements. That solution will be discussed further in

PartVm.

V. Why Incumbents Benefit

The coordinated communications rules apply equally to all candidates, but
the business communications they snare come from political outsiders—usually
challengers. Congressional rules and realities inhibit incumbents from being

involved with business communications. Challengers, however, often come from
outside the professional political arena and from inside the business arena. When
the rules harm those challengers, incumbents benefit.

A. Incumbents ' Limited Business Involvement

Incumbents are professional politicians. They must represent their
constituents full-time and their official and unofficial Senate and House duties
keep them busy. These congressional duties would make it implausible, if not
impossible, for incumbents to be materially involved in an outside business'

public communications.

Eurthermore, congressional ethics rules virtually eliminate the possibility of

incumbents engaging in outside business communications that could be snared

by these rules. Eirst, congressmen are barred from earning outside income in

excess of fifteen percent of their annual salary.''"^ In addition, congressmen

generally cannot affiliate with or be employed by any business entity providing

professional services which involves a fiduciary relationship.'*^ Nor can they

1 14. Rules oftheHouseofRepresentatives,H.R. Doc. No. 108-241, at905 (2005) (Rule

XXV(l)(a)(l)), Standing Rules of the Senate, S. Doc. No. 106-15, at 66-67 (2000) (Rule

XXXVI); see 5 U.S.C. app. § 501(a)(1) (2005). In the House, outside earned income includes

money received from a business in which the member or his family holds a controlling interest,

unless "both personal services and capital are income-producing factors" and "the personal services

actually rendered by him in the trade or business do not generate a significant amount of income."

Rules of the House of Representatives, H.R. Doc. No. 108-241, at 910 (2005) (Rule

XXV(4)(d)(l)D)).

115. RulesoftheHouseofRepresentatives,H.R.Doc.No. 108-241, at 907 (2005) (Rule

XXV(2)); Standing Rules of the Senate, S. Doc. No. 106-15, at 67 (2000) (Rule XXVII(5)).

These professional services include, for example, "law, real estate or insurance sales, financial

services, or consulfing or advising." COMMITTEE ON STANDARDS OF Ofhcial Conduct,

Highughts ofHouse Ethics Rules (2005), http://www.house.gov/ethics/Highlights2005a.htm.



136 INDIANA LAW REVIEW [Vol. 40: 1 19

allow any of those business entities to use their nameJ '^ Congressmen are also
subject to more general conflict of interest rules, which limit their involvement
with outside businesses.' '^ Taken together, these ethics rules preclude members
of Congress from involving themselves with private businesses.

The rules of Congress and the practical effects of full time office-holding
limit incumbents' involvement with outside businesses. Because of those

limitations, incumbents are highly unlikely to engage in public communications

coordinated with outside businesses. Incumbents' version of business-related

public communications is called news coverage,''^ and the rules cannot limit
news coverage.'*^

B. Challengers as Candidates and Businessmen

Challengers often come from outside politics and thus from professions that
may involve public communications. Although some challengers come from
other elected offices, in Senate and especially in House elections most
challengers are not seeking to merely swap elected offices. In the last half-
century nearly eighty percent of challengers and fifty percent of open-seat

candidates for the House had never before held elected office. '^° Even though
prominent members of the community often challenge incumbents, most are
political amateurs who could see their business communications affected.

Because challengers likely come from outside the political area, the
coordinated communications rules potentially harm their businesses and
campaigns. If a challenger comes from a profession that uses public
communications regularly, the rules may apply to those communications. For
example, Andy Mayberry and Russ Darrow both ran against incumbents and
were harmed by the rules. While congressional incumbents are immune to this
problem, some of their strongest outsider challengers—successful businessmen
with high profiles in their communities—may suffer from the rules' over-
inclusion.

The BCRA produces similar problems in open-seat elections, which also
involve large numbers ofpolitical outsiders. In House elections nearly half of the
candidates in such elections were political newcomers.'^' Pete Coors and Mike
Whalen both sought open seats when the rules impacted their campaigns. Even
though open-seat candidates do not run against incumbents, they often run

against office-holders. Over fifty percent of the candidates in open-seat House

1 16. Rules oftheHouseofRepresentatives, H.R. Doc. No. 1 08-24 1 , at 907 (2005) (Rule

XXV(2)); Standing Rules ofthe Senate, S. Doc. No. 106-15, at 67 (2000) (Rule XXVII(5)).

117. E.g., Standing Rules of the Senate, S. Doc. No. 106-15, at 67 (2000) (Rule

XXXVII(2)).

118. SeeinfraFwrtVl.B.

119. 11 C.F.R. § 100.73 (2005) (exempting news coverage from qualifying as a contribution).

1 20. Gary C. Jacobson, The Politics of Congressional Elections 37 (5th ed. 200 1 ).

121. Id.



2007] REGULATING COORDINATED COMMUNICATIONS 1 37

elections brought political experience with them.'^^ Inevitably, some of those
were office holders unaffected by the rules for the same reasons incumbents are
unaffected.

Thus, only political outsiders suffer from the damage produced by the rules
regardless of whether that outsider is running against an incumbent or for an

open seat. Most political outsiders run against incumbents, and incumbents
directly benefit when the rules constrain these challengers. However, even in
open seat elections outside office-holders benefit indirectly when running against
political amateurs who are adversely affected by the rules.

VI. The Incumbency Advantage

The coordinated communications add to incumbents' preexisting electoral
advantage. The incumbency advantage perpetuates unfairness to challengers and
greater disconnects between incumbents and constituents. Any rules that add to
the incumbency advantage should be avoided.

A. Evidence of the Incumbency Advantage

Countless studies document the existence of incumbency advantage in

congressional elections. ^^^ Incumbents enjoyed a relatively small advantage in

the first half of the twentieth century, but that "rapidly increased during the

1950s and 1960s, and has been relatively high for the past thirty years."^^"^ That

advantage approached ten percentage points on average in recent elections.
'^^

Recent congressional elections demonstrate the effects of the incumbency

advantage. For example, in 2004 only eight incumbent congressmen running for

re-election—one senator and seven representatives—lost their seats in the
general election. ^^^ In House races, almost ninety percent of those incumbents
won re-election by "landslide' margins of at least 20 percent."'^^ Previous
elections produced similar numbers. Only seven House incumbents in 2002 and

122. Id.

123. See, e.g., Stephen Ansolabehere & James M. Snyder, Jr., The Incumbency Advantage in
U.S. Elections: An Analysis ofState and Federal Offices, 1942-2000, 1 ELECTION L.J. 315 (2002).

1 24. Andrew Gelman & Zaiying Huang, Estimating Incumbency Advantage and Its
Variation, AsAnExampleOFABefore-AfterStudy 19 (2004), http://www.stat.columbia.edu/
~gelman/research/published/inc6.pdf.

125. Id.

1 26. Rhodes Cook, The Election of2004: A First Take, http://www.rhodescook.com/first.take.

html (last visited Mar. 7, 2006). Four of those incumbent losers in the House were Texas

Democrats, two of whom were running against Republican incumbents. Id. New Republican-
drawn congressional districts played a significant role in the failed re-election bids of these Texas

Democrats. See Robin Toner, Slim Pickings; Getting Pumped? Get Real, N.Y. TIMES, Nov. 13,

2005, §4, at 1.

1 27

.

TheCtr. forVotingandDemocracy, DubiousDemocracy 2005 : Overview (2005 ),
http://www.fairvote.org/?page= 1 460.



1 38 INDIANA LAW REVIEW [Vol. 40: 1 19

five in 2000 were defeated. '^^ The House incumbent re-election rate in the last
three federal elections ranged from ninety-six to ninety-eight percent. '^^ As
noted earlier, this advantage is not merely a recent phenomenon. Indeed, for

forty years the re-election rate has hovered around ninety-five percent in the

House. ^^" Still, the numbers from recent elections show that challengers have
much to fear. By one research group's calculations, the last two federal elections
were among "the least competitive elections in American history."*^'
Challengers clearly face long odds in federal elections.

B. Problems Created by the Incumbency Advantage

The incumbency advantage unfairly disadvantages challengers and reduces
elected officials' responsiveness to constituents. The American public's support
for term limits evidences its general unease with entrenched incumbents. '^^ Most
major newspaper editorial boards, even as imperfect barometers of public

sentiment, decry the advantages given to incumbents. ^^^ In a democracy, public

opposition to entrenched incumbents, taken alone, indicates that the incumbency

advantage is a problem that should be addressed. The reasons for such
opposition are rooted in principles of American democracy. Although House
incumbents now benefit greatly from the incumbency advantage, the founders
envisioned something different.

First, the incumbency advantage unfairly closes the doors of government to

potential challengers. Centuries ago James Madison documented the founders'
vision that congressional campaigns be open to all. In Federalist No. 52 Madison
wrote, "[T]he door of [the House of Representatives] is open to merit of every
description, whether native or adoptive, whether young or old, and without

regard to poverty or wealth, or to any particular profession of religious faith."^^"*

Later, the Seventeenth Amendment extended that ideal to the Senate by

128. Press Release, Campaign Finance Institute, House Winners Average $1 Million for the

First time: Senate Winners Up 47%, tbl. 2: House Incumbents and Challengers, Safe and

Contested Races 2000-2004 (Nov. 5, 2004), http://www.cfmst.0rg/pr/l 10504a.html (follow Table

2 hyperlink). Three of the seven incumbents defeated in 2002 ran against fellow incumbents. Id.

129. Toner, supra note 126, at 1.

1 30. David Plotz, The House Incumbent, SLATE, Nov. 3, 2000, available at http://www.slate.

com/id/92692/.

131. The Ctr. for Voting and Democracy, supra note 1 27.

132. James Rosen, Is Time Up On Term Limits?, News & OBSERVER (Raleigh, N.C.), Aug.
22, 1999, at A25 ("Nationwide, about two-thirds of Americans support term limits for elected

officials, according to polls.").

133. See, e.g. Editorial, The Campaign Reform Fraud, Cffl. Trib., Dec. 7, 2002, at 24 ("The

McCain-Feingold campaign finance law is desperately flawed. . . . [A] 11 the advantages go to

incumbent members ofCongress. McCain-Feingold is, if anything, a self-preservation tool for the

people who voted to make it law.").

134. The Federaust No. 52 (James Madison).



2007] REGULATING COORDINATED COMMUNICATIONS 1 39

mandating the popular election of Senators. ^^^ Perhaps the sentiment reflected

by Madison's prose is more idealistic than realistic—but that ideal cannot be
dismissed. With House races now often reduced to landslide victories for
incumbents, the door to the House may not be as open as the framers intended.

The Supreme Court also noted the fundamental unfairness of giving
incumbents advantages over challengers. In Buckley v. Valeo, the Court

expressed its willingness to declare a statute unconstitutional ifthat statute would
"invariably and invidiously benefit incumbents as a class."^^^ Such
discrimination against challengers would violate the Fifth Amendment Due
Process Clause by denying challengers equal protection under the law.'^^ The
Court's opposition to "restrictions on access to the electoral process" confirms

the seriousness of the problem with the coordinated communications rules.
^^^

Second, the incumbency advantage can reduce the connection between

constituents and their representatives. Madison stressed the importance that
Congress be "restrained by its dependence on its people."^^^ Biennial elections

for Representatives were intended to ensure "a due connection between" the

people and their representatives, thus securing for the people "every degree of

liberty."^"^^ Madison envisioned a close connection between constituents and
congressmen, but when re-election is assured the connection wanes.

Congress members' incentive to be responsive to their constituents surely

decreases when their incumbent status all but guarantees re-election. Ninety-four
House incumbents running for re-election in 1998 faced no major party
challengers. ^"^^ In uncontested races, voters are left with no real choice.

Elections become mere formalities, and incumbents need not rely on the people.
Although some incumbents probably are re-elected precisely because of their
responsiveness to constituents, many factors that contribute to the incumbency
advantage are unrelated to incumbents' interaction with constituents. The job
security incumbents derive from these factors would allow them to depart from

their constituents' ideological preferences without suffering at the polls. By
closing the doors of government to challengers and constituents, the incumbency

advantage damages democracy.

vn. Neutralizing THE Incumbency Advantage

The coordinated communications rules add to the incumbency advantage by
barring challengers from taking advantage of their status within the community.

Incumbents benefit from several systemic factors in elections and also from their

135. U.S. Const, amend. XVII.

136. Buckley v. Valeo, 424 U.S. 1, 32 (1976).

137. Id. at 93 ("Equal protection analysis in the Fifth Amendment area is the same as that

under the Fourteenth Amendment.")-

138. Mat 94.
139. The Federaust No. 52 (James Madison).

140. Id.

141. Jacobson, supra note 120, at 48.



140 INDIANA LAW REVIEW [Vol. 40: 1 19

status within their communities. Challengers appearing in legitimate business

communications could neutralize incumbents' community status advantage.
Those legitimate business communications could indirectly convey to voters the

challenger's qualifications for office and increase the challenger's name
recognition. However, the rules limit the ability of challengers to fight the

incumbency advantage in that manner.

A. Advantages Unrelated to Community Status

Incumbents enjoy several systemic advantages that contribute to the overall

incumbency advantage, including gerrymandered districts, fundraising

capabilities, the congressional seniority system, and declining party affiliation

among voters. Even the most well-known challenger often cannot combat the
advantages incumbents derive in these areas because these factors are largely

unrelated to community status. Therefore, these factors automatically
disadvantage challengers.

Critics frequently cite gerrymandering as a main cause of incumbency

advantage. Incumbents usually bear the responsibility ofredrawing district lines,

and they can use that power to draw less competitive districts and protect their
seats.

^"^^ Because congressional districts are usually drawn by incumbents,
^"^^

commentators presume that they are drawn to protect incumbents.'"^ Some
studies attempt to gauge the impact of redistricting on incumbency advantage.

One such study compared the results of congressional elections in 2000 and then
in 2002, after most districts were redrawn. '"^^ According to the study, thirty-

seven of the total forty-six competitive districts in 2000 became safer for
incumbents in 2002.'"^^ Another study estimated that the redistricting that

occurred between 2000 and 2002 made three quarters of the marginal
congressional districts safer for incumbents.

'"^^

Though supporters billed the BCRA as a measure to level the playing field
in fundraising,'"^^ incumbents maintained their huge fundraising advantage in

142. Id.

143. Nat'lConference OF State Legislatures, Redistricting Law 2000 app. D (1999),
http://www.senate.leg.state.mn.us/departments/scr/redist/red2000/Apdauth.htm.

144. See, e.g.. Editorial, Incumbents Shake Their Money Tree, N.Y. TIMES, Nov. 2, 2005, at

A28 (noting the power of political parties "to gerrymander legislative lines to grossly favor

incumbents").

145. Voting and Democracy Research Ctr., Redistricting and Incumbent Protection in

2001-2002, http://www.fairvote.org/?page=715 (last visited Mar. 7, 2006).

146. Id.

147. Gary C. Jacobson, Terror, Terrain, and Turnout: Explaining the 2002 Midterm Elections,

118P0L.SCI.Q. 1,10(2003).

148. David S. Broder, Editorial, Reform: The Doubt

.

. ., WASH. POST, Apr. 3, 2001, at A21

(noting the BCRA authors' attempt to "'level the playing field' for all those involved in the political
game")



2007] REGULATING COORDINATED COMMUNICATIONS 141

2004.'"^^ On average. House incumbents in 2002 who won competitive races also
won the fundraising battle by a count of $1.2 million to the challengers'
$700,000.'^° In 2004, that gap widened with incumbents pulling in $1.6 million

compared to the challengers' stagnant total of $700,000.'^* Even when
challengers beat incumbents in 2004 they were out-fundraised by over
$400,000.^^^ The fundraising numbers for Senate races mirror those of House
races. '^^ These numbers demonstrate that the incumbency fundraising advantage

can hinder even the most viable challengers.

Because the congressional power structure rewards seniority, voters favor
incumbents in order to gain more powerful representation in Congress. All
incumbents enjoy some level of seniority, whereas newly elected challengers
start with none.*^"^ Seniority in Congress is tied to power, which can benefit

constituents.*^^ Thus, the seniority system adds an incentive for voters to choose

incumbents. *^^ The 2004 Senate primary in Pennsylvania battle between
incumbent Arlen Specter and challenger Pat Toomey illustrates this point.
Specter had over twenty years of Senate experience and was in line to chair the
Senate Judiciary Committee. *^^ Though Toomey was considered more
ideologically in line with the primary voters, Specter touted his seniority.

'^^

Specter emerged victorious from the primary . *^^ That campaign demonstrates the
power of incumbent seniority over voters.

Finally, incumbents benefit from declining party affiliation among voters.
Voters who feel less attachment to political parties, the theory goes, identify
more with individual candidates. *^° As a result, incumbents can gamer votes as
an individual candidate that otherwise may have been party-line votes against
them.'^* This theory receives support from the fact that decreases in party

affiliation corresponded with increases in incumbency advantage.
*^^

149. Campaign Finance Institute, 5M/?ra note 128.

150. Id.

151. Id.

152. Id.

153. Press Release, Campaign Finance Institute, House Winners Average $1 Million for the

First time: Senate Winners Up 47%, tbl.3: Senate Incumbents and Challengers, Safe and Contested

Races 2000-2004 (Nov. 5, 2004), http://www.cfmst.org/pr/110504a.html (follow Table 3

hyperlink).

154. Ansolabehere & Snyder, supra note 123, at 315.
155. Id.

156. Id.

157. James Dao, Conservative Takes on Moderate G.O.P. Senator in Pennsylvania, N.Y.

Times, Apr. 3, 2004, at A8.

158. Id.

159. Lauren Sheperd et al.. Specter Could Be Losing Support in Pa. , THE HiLL, May 4, 2004,

at 19.

160. Ansolabehere & Snyder, supra note 123, at 327.
161. Id.

162. Id.



142 INDIANA LAW REVIEW [Vol. 40:119

Thus, incumbents derive advantages from gerrymandering, fundraising,

seniority, and declining party affiliation. These factors relate to the current

political structure of the country rather than voter-candidate relations.

Consequently, challengers cannot use their reputation in the community to
contest these incumbent advantages.

B. Advantages Related to Community Status

Incumbents' status within their constituent community gives them an
additional advantage. With earmarks, ^^^ constituent services, and constant media
attention, incumbents increase their status within their community and improve
their relations with voters. The Supreme Court called the incumbency advantage
stemming from these factors "axiomatic." ^^"^ The Court further elaborated:

In addition to the factors of voter recognition and the status accruing

to holding federal office, the incumbent has access to substantial

resources provided by the Government. These include local and

Washington offices, staff support, and the franking privilege. Where
the incumbent has the support of major special-interest groups . . . and

is further supported by the media, . . . contribution and expenditure

limitations . . . could foreclose any fair opportunity of a successful

challenge.
^^^

Incumbents are professional politicians, and FEC rules place no limitations on
their ability to exploit the aforementioned advantages of federal office-holding.

Congressmen often earmark federal funds for projects in their districts in

order to improve their status with constituents. In the last decade the number of
earmark projects increased nearly ten fold, from 1439 in 1995 to 13,997 in
2005.^^^ Congress now spends $27.3 billion on earmarks, whereas in 1995 it
spent $10 billion. ^^^ Alaska led the way in earmarks, receiving nearly $1000 per
person in federal earmarks in 2005.^^^

Incumbents surely benefit from the local projects for which they secure

earmarked federal funds. Even though many consider earmarks a significant

163. Earmarks are often referred to as pork barrel legislation. Such legislation "favors a

particular local district by allocating funds or resources to projects (such as constructing a highway

or a post office) of economic value to the district and of political advantage to the district's

legislator." Black's Law Dictionary 918 (8th ed. 2004).
164. Buckley v. Valeo, 424 U.S. 1, 31 n.33 (1976).

165. Id. The franking privilege is "[t]he privilege of sending certain mail free of charge,

accorded to certain government officials, such as members of Congress and federal courts."

Black's Law Dictionary 684 (8th ed. 2004).
166. Citizens Against Gov't Waste, Congressional Pig Book 3 (2005), available at

http://www.cagw.org/site/PageServer?pagename=reports_pigbook2005.

167. Id.

168. Id.



2007] REGULATING COORDINATED COMMUNICATIONS 143

problem, '^^ individual districts and states undoubtedly appreciate the funding

they receive. These funds can create infrastructure and jobs for constituents.

Additionally, constituents remain fully aware of the earmarks their

representatives secure for the district because the local media covers these
benefits comprehensively. ^^^ Thus, earmarks benefit many incumbents when it
comes time for re-election.

Incumbents maintain constituent services programs, paid for with tax dollars,

whereby they directly conmiunicate with constituents. Congressional rules
sanction numerous forms of constituent services. ^^^ For example, House
members are allotted on average over $100,000 for direct mailings to
constituents. '^^ Also, they can advertise for and conduct town hall meetings and
maintain official web sites. '^^ Through these programs Congress gives
incumbents ample resources to improve their standing with constituents.

Finally, incumbents enjoy a large advantage in overall media attention.
Much of this advantage stems from press coverage unrelated to congressional
campaigns. The press covers members of the House year-round, documenting
their actions as lawmakers in Congress and at home.*^"^ Incumbents enjoy this

non-campaign coverage both in off years and during the campaign season. '^^ As
a result. House incumbents maintain a huge advantage in total news coverage
over challengers. ^^^ The same advantage could be expected for incumbent
Senators because local media rely on their incumbent Senators for news about the
federal government.

^^^

Campaign coverage depends upon the competitiveness of the race, which
also benefits incumbents, in competitive races the media balances coverage of

169. See Shailagh Murray, Capital's New Four-Letter Word, WASH. POST, Jan. 27, 2006, at

A21. Due to this opposition. Congress may soon reform its practice of rubber-stamping earmarks.

Jeffrey H. Bimbaum, Senate Draft on Lobbying Clamps Down on Earmarks, WASH. PoST, Feb. 28,

2006, at A7.

170. R. Douglas Arnold, Congress, the Press, and Political Accountability 146

(2004).

171. Committee on House Administration, Members' Congressional Handbook,

available at http://cha.house.gov/services/memberhandbook.htm [hereinafter MEMBERS'

Congressional Handbook].

172. Committee on House Administration, What Is the Frank?, http://cha.house.gov/
services/franking_commission_whatisfrank.htm (last visited Mar. 7, 2006).

173. Members' Congressional Handbook, supra note 171.

174. Arnold, supra note 170, at 167.

175. Id.

176. Id. The imbalance in media coverage of campaigns is made possible, at least in part, by

the ineffectiveness ofthe Federal Communications Commission's equal time provisions. See Anne

Kramer Ricchiuto, Note, The End of Timefor Equal Time?: Revealing the Statutory Myth ofFair

Election Coverage, 38 IND. L. REV. 267 (2005).

1 77

.

Kim Fridkin Kahn & Patrick J. Kenney, The Spectacle ofU.S . Senate Campaigns
106(1999).



144 INDIANA LAW REVIEW [Vol. 40: 1 19

incumbents and challengers.'^^ However, the media gives scant coverage to
uncompetitive races, where the challenger's electoral success is less likely. '^^ In

these uncompetitive races, coverage of incumbents outpaces that of

challengers.'*" Because so few races are now competitive, incumbents benefit
from the media's hands-off approach to races deemed uncompetitive.'*' The
media may contribute to challengers' lack of success in the polls by denying
them the attention necessary to improve their electoral prospects.'*^

Media coverage directly relates to electoral success. Increased media
coverage helps candidates raise money and prove their viability.'*^ In addition,
voters' recognition of a candidate's name, familiarity with a candidate, exposure

to a candidate, and personal contact with a candidate all typically increase that

candidate's probability of success.'*'' Therefore, the disproportionate amount of
media attention garnered by incumbents further boosts their chances of retaining

office.

C. Neutralizing the Incumbency Advantage

While some systemic factors automatically disadvantage challengers, those
same challengers could use their status in the community to combat incumbents'
status-related advantages. Challengers with strong business reputations could

convert that reputation into political capital in federal campaigns. For example,

challengers running successful businesses in their communities provide jobs to

potential voters. Those challengers can also tout their business success as a

qualification for federal office. Therefore a challenger's business experience

could operate as his version of earmarks for the community, demonstrating to

voters his fitness for office. In addition, challengers regularly engaging in

business-related public communications increase their exposure to voters. Those

legitimate business communications could indirectly demonstrate a challenger's

qualifications for office and increase her name recognition among voters. Those
communications could help challengers combat incumbents' advantage relating

to media exposure.

178. M; Arnold, 5M/7rfl note 170, at 167.
179. Kahn & Kenney, supra note 177, at 158; ARNOLD, supra note 170, at 167.
1 80. Kahn & Kenney, supra note 1 77, at 1 56. Measures of incumbents' actual advantage in

news coverage vary. One group, for example, estimates that incumbents receive five times the

coverage of challengers. Darlisa Crawford, Media Coverage of U.S. Elections Closely Monitored,

Wash. File (U.S. State Dep't), May 21, 2004, available at http://usinfo.state.gov/dhr/Archive/

2004/May/21-398977.html.

181. Arnold, supra note 170, at 156 (arguing that the decision of the media to ignore

uncompetitive races "contributeIs] to the safety of incumbents").

182. Kahn & Kenney, supra note 177, at 214.
183. Id. at 17.

184. Mat 214, 220.



2007] REGULATING COORDINATED COMMUNICATIONS 145

D. How the Rules Impair Challengers

The rules on coordinated communications impair challengers' ability to
convert their status within the community into electoral success. This
impairment results from three distinct problems the rules create for some
challengers: (1) they harm a candidate's campaign by reducing his status within
the community, (2) they harm a candidate's business or professional life by
forcing him to curtail his professional obligations and business operations for a
chance to run for federal office; and (3) they prevent an aspiring candidate from
entering a federal race.

7. Harm to Campaigns.—The rules can directly harm a challenger's
campaign by reducing his status within the community in several ways. First, if
a challenger chooses to continue engaging in business-related public

communications during the campaign, he risks being branded a rule-breaker by

opponents. Pete Coors experienced this firsthand when critics labeled the
brewery's pre-election ads "inappropriate' and possibly illegal."*^^ If opponents

believe the communications violate the rules, they may even file a complaint with
the PEC. Mike Whalen's restaurant commercials triggered such a complaint. '^^

This criticism could significantly reduce a challenger's support among voters.
Second, the rules could create confusion within a challenger's campaign. A

challenger aware of the rules could question their applicability to her business-

related public communications. Though the rules attempt to create a bright-line
test, their application can be fact intensive and thus subject to the EEC's
discretion.

^^^ Such a distraction could impair a challenger' s ability to effectively

campaign.

Third, if a challenger chooses to cease engaging in business-related public

communications, his exposure to voters would decrease. In order to avoid

breaking the rules, a challenger may choose to shelve his business-related public
communications during the campaign. That would automatically reduce his

exposure to voters, decreasing his likelihood of electoral success.

2. Harm to Businesses.—The rules could harm a challenger's business or
professional life by forcing her to curtail her business or professional obligations

during the campaign. First, the rules create uncertainty for businesses

disseminating the communications. Russ Darrow' s auto dealership group feared

its advertisements could bring "the threat of criminal penalties for an unlawful

in-kind corporate contribution to a political campaign."
^^^

That confusion could force businesses to limit their communications, with

potentially devastating effects. Darrow' s dealerships typically spent half a

million dollars per month on advertising, and elimination of that advertising for
four months before November elections could harm both the dealerships and the

185. Brand & Kesmodel, jM/7ra note 67.
186. Earnhardt Letter, supra note 84.

187. See supra note 59 and accompanying text.

188. Will, supra note 1.



146 INDIANA LAW REVIEW [Vol. 40: 1 19

salesmen who rely on commissions from salesJ^^ The rules led Andy Mayberry
to sell one of his publications to his financial detriment and to reduce activities

in another. ^^^ Clearly the rules can inflict significant harm on candidates'
businesses.

3. Reductions in the Candidate Pool.—The rules could even dissuade
potential challengers from entering the race. A potential challenger aware of the
harm the rules could inflict on her campaign and business, and the benefit that
harm confers on the incumbent, may forgo a shot at federal office. Even a
potential challenger willing to accept the business-related harm could still be
dissuaded from running because the campaign-related harm could decrease his
overall chances of electoral success. The harm inflicted by the rules can raise the
cost of running for office, and this higher cost of running "dissuades potentially

higher quality challengers from seeking office and allows lower quality

incumbents to persist."
'^^

vm. The Solution

The coordinated communications rules could close a campaign finance
loophole while sparing legitimate business communications from undue

regulation. However, the PEC cannot prevent the rules' capture of business
communications without directly addressing the problem that results. Thus, the

FEC must tailor the rules to ensure these business communications are excluded
without creating excessive uncertainty for candidates. Challengers should be

able to examine the rules and be assured that their legitimate business

communications will not be barred or limited by the FEC.
First, the excluded business communications must be legitimate and not

attempts to circumvent campaign finance limitations. Candidates should not be

allowed to use business communications as de facto campaign advertisements.

Any direct support for the person's federal candidacy or opposition to opponent
candidates should eliminate business legitimacy. Injudging business legitimacy,

the FEC should consider whether the candidate used similar business
communications before he entered the race.

Still, business legitimacy is a broad concept, and it should retain that breadth

in the safe harbor. The FEC should not substitute its business judgment for that
of the business in question. Changes in the form or number of business
communications should not automatically strip the communications of their

business legitimacy. Legitimate business considerations could prompt such

changes. ^^^ Nor should the candidate's campaign message affect the legitimacy

189. Id.

190. Mayberry E-mail, supra note 78.

191. Einer Elhauge et al.. How Term Limits Enhance the Expression of Democratic

Preferences, 5 SuP. Ct. Econ. Rev. 59, 68 (1997).

192. For example, the Coors brewery created ads outside of its regular ad campaign in

response to ads attacking the company. Brand & Kesmodel, supra note 67. Ads such as those
should be considered legitimate.



2007] REGULATING COORDINATED COMMUNICATIONS 147

ofhis business communications. A challenger should be able to tout his business
experience as a campaign theme. Business communications should not be
rendered illegitimate merely because they reinforce or remind voters of the

candidate's campaign themes.

Second, the rules should avoid creating undue uncertainty for candidates.

Uncertainty is a problem because it prevents candidates and businesses from

making decisions with full knowledge of the likely consequences. Uncertainty
could lead cautious challengers to curtail their business communications or risk-

taking challengers to continue business communications that ultimately are found

to violate the rules. Such uncertainty also opens the door for opponents to label
each other rule-breakers, even if the FEC ultimately vindicates the accused.

Therefore, the rules should retain the bright line tests currently found in the

content prong, but they should include a safe harbor for legitimate business

communications. That safe harbor provision could read as follows:

Safe harbor for legitimate business communications. The content
standards are not met if: (1) the public communication is paid for by a
business associated with a federal candidate; (2) the public

communication is made for legitimate business purposes; and (3) the
public communication does not promote, support, attack, or oppose the

federal candidate associated with the business, that candidate's

opponent, or another candidate who seeks election to the same office as
that candidate.

^^^

The language above is meant only to illustrate a general solution. Other language
could accomplish the same result—ensuring candidates that their legitimate
business communications remain free from FEC regulation.

This approach would retain the structure of the rules and the bright-line tests

to which federal candidates have grown accustomed, but the safe harbor would
save legitimate business communications from undue regulation. Admittedly,

some ambiguity would persist—for example, regarding whether the
communication was made for legitimate business purposes. Still, common sense
considerations could guide this determination. The FEC could consider whether
the business has a history of using similar public communications and whether

similar businesses in the industry use similar public communications. However,

those factors should not narrow the scope of business legitimacy. In the end, the

safe harbor should protect nearly all business communications that do "not

promote, support, attack, or oppose" a relevant federal candidate.
^^"^

This safe harbor solves the problem ofover-inclusion by shielding legitimate

business communications from unnecessary regulation by the FEC. The safe
harbor would protect regular business advertisements as well as most

communications by candidates employed in the media industry. With this safe

harbor, Pete Coors, Russ Darrow, and Mike Whalen could have campaigned

193. The language and structure of this proposal mirrors that of two safe harbor provisions

adopted by the FEC in the post-Shays rulemaking. Proposed Rules, supra note 108, at 8.

194. Id.



148 INDIANA LAW REVIEW [Vol. 40: 1 19

without the fear that their beer, automobile, and restaurant advertisements were

breaking the EEC's rules. Andy Mayberry could still own his newspaper and
could have continued penning columns therein. This rule change would allow

challengers to compete more effectively with congressional incumbents. Such

a change would be a small step towards greater fairness for challengers and a

healthier democracy in America.

Conclusion

The BCRA expanded the rules on coordinated communications to the point
where they now proscribe legitimate business communications unrelated to
federal elections. These business communications comprise yet another form of

speech "made problematic by the campaign reformers' itch to extend government
supervision of speech."'^^ One problematic aspect of the coordinated
communications rules is the electoral advantage they give incumbents.

Opportunities abound for incumbents to increase their community status. The
rules prohibit challengers from doing the same by outlawing many of their
legitimate business communications. The rules should be rewritten to ensure that
they leave the legitimate business communications of federal candidates

untouched. The EEC's coordinated communications rules should include a safe
harbor for legitimate business communications to promote fairness for political

outsiders in federal elections.

195. Will, supra note 1.