Independent Expenditure: Candidates Are Not Responsible For Big-Money Expenditures

With so much money flying around during this year’s election, many people are confused. The heart of the matter is who is spending money to get their preferred candidates elected.

When candidates run for office, they typically raise money. They do this by soliciting contributions from people that want to see them in office. That money goes toward funding their campaign.

California’s Fair Political Practices Commission (FPPC) sets the rules for how the money raised can be spent. Former Santa Clara Council Member Dominic Caserta recently learned this lesson the hard way, getting into hot water with the FPPC for improperly spending money he raised during his supervisorial campaign.

This type of spending is pretty straightforward, or at least is not at the heart of any confusion. While the rules around how candidates can spend the money might be a bit difficult to understand, it is at least clear that the money raised comes from supporters and goes to the candidate, or, more aptly, his or her campaign committee.

Independent Expenditure

What complicates the situation is that there is a second type of spending. That second type of spending is when someone uninvolved in a campaign spends money to support a candidate or ballot measure. That type of spending is called an independent expenditure.

Special interests give money to political action committees (PACs). Then, those PACs spend that money, typically to buy air time on TV or radio, mail fliers, purchase billboards, ads in newspapers, or on the internet.

So, when Santa Clara’s police union, the Police Officers Association PAC (POA), spends money to support District 1 candidate Satish Chandra, it is an independent campaign expenditure. When Related Santa Clara’s PAC spends money to elect District 5 candidate David Kertes, that is also an independent campaign expenditure.

When the DeBartolo Corporation & Affiliated Entities, Including Forty Niners Football Company, colloquially known as “the 49ers,” spends money to re-elect Council Members Suds Jain and Kevin Park, that is also an independent campaign expenditure.

This money does not belong to the candidate. It never goes into their campaign fund. So, the common characterization that, for instance, the 49ers “gave” Anthony Becker money to run for mayor in 2020, is not only inaccurate, it is incredibly misleading.

Messaging Gap

These two types of spending are disparate, and they explain the tonal gap between messaging. As effective as they are, running ads that attack an opponent typically gives a candidate a bad image, making them appear mean-spirited. As a result, candidates’ campaign messaging usually emphasizes their merits and avoids disparaging their opponents.

In TV ads, this is typically signified at the end of an ad with the phrase “I am [candidate’s name], and I approve this message.” The gloomy ads using visually dark imagery and an alarming voiceover are usually independent campaign expenditures. The law requires the inclusion of the language “ad paid for by” as a disclosure so voters know who is funding a particular narrative.

While many residents bemoan the influence of money on local elections, the law protects this type of spending. In the landmark ruling Citizens United v. FEC, The Supreme Court found that the First Amendment prevents the government from blocking what amounts to political speech.

Often, the emphasis is on money that big business, such as the 49ers, spends. However, the law cuts both ways, protecting all groups’ right to spend. The same specifications that allow the 49ers to shovel heaps of money at their preferred candidates also allow unions, environmental groups and nonprofits to do the same.

For instance, if the Santa Clara Swim Club, Santa Clara Lawn Bowlers or Reclaiming Downtown wanted to spend money supporting their preferred candidates, they would be able to do so. Whether a group’s finances allow them to compete with financial juggernauts like the POA or the 49ers is immaterial.

Law Prohibits Candidates from Interacting with Independent Expenditure Committees

It is important to understand that candidates cannot control this messaging. The law actually prohibits candidates from interfering in how content funded by independent expenditure is crafted.

According to the Code of Federal Regulations, an independent expenditure is only such if it “… is not made in cooperation, consultation, or concert with, or at the request or suggestion of, a candidate, a candidate’s authorized committee, or their agents, or a political party committee or its agents.”

Colluding with PACs to govern the content of a political message is called “material involvement.” If a candidate’s committee meddles in the content of a message, FPPC regulations call it “coordinated communication” or communication “made at the behest of.”

A candidate is materially involved if they assisted “… in decisions regarding the communication … or shares financial responsibility for the costs of production or dissemination with any such person.”

Coordinated communication, according to the FPPC, falls into three categories.

The first category is if the beneficiary requests, directs, consults, suggests, coordinates or directs the content creator to craft the content based on their preferences. The second is if the beneficiary makes decisions about the communication’s content, timing, location, mode, intended audience, distribution, or frequency of placement. Finally, if the creator has discussed and agreed with the committee regarding the aforementioned criteria, the communication is coordinated.

The FPPC also details what actions fail to meet the threshold for coordinated communication.

Interviewing anyone involved in the candidate’s committee about issues relevant to the entity spending the money does not count as coordinated communication. Neither does receiving materials such as photographs or press releases about the candidate’s positions.

Provided the candidate does not discuss the details of the expenditure prior to soliciting an endorsement, seeking an endorsement does not qualify as coordinated communication. Similarly, provided no such discussion takes place, simply meeting with those making an expenditure also does not qualify.

Prior contributions to the candidate’s campaign and informing a candidate about an expenditure are not coordinated communication, again provided there is no exchange of information not publicly available. Further, candidates are free to suggest that an expenditure be made for the benefit of another candidate without it being coordinated communication.

Finally, hyperlinks to a candidate’s website or social media profiles are allowed.

Each violation of these rules can result in a $5,000 fine from the FPPC; the Santa Clara County District Attorney handles criminal prosecutions.

In an email exchange, Jay Wierenga, communications director for FPPC, wrote that the majority of cases the FPPC investigates are complaint-driven.

“Anyone can file a complaint. Regular citizens, and during election season, many are filed by opposing candidates/campaigns,” he wrote. “FPPC Enforcement Division can also begin any investigation on its own, upon becoming aware of any potential violation.”