Current through Register 1531, September 27, 2024
(1)
The definition of "independent expenditure" in M.G.L. c. 55, § 1 includes
expenditures made "without cooperation or consultation with any candidate or a
nonelected political committee organized on behalf of the candidate or an agent
of the candidate" and specifies that the expenditures may not be made "in
concert with or at the request or suggestion of the candidate" or a committee
organized on behalf of the candidate.
(2) The definition of an "electioneering
communication" in M.G.L. c. 55, § 1 includes issue-oriented communications
aired or published within 90 days of a general or special election.
(3) Throughout 970 CMR 2.21, the terms
"candidate" and "committee" include their agents, when the agent is acting
within the scope of his or her authority. For the purposes of 970 CMR 2.21, an
"agent" of a candidate or committee is any person or entity who has actual
authority, either express or implied, to engage in activities on behalf of the
candidate or committee. An "entity" is any group including, but not limited to,
an Independent Expenditure PAC, that either makes an independent expenditure or
electioneering communication expenditure, as those terms are defined in M.G.L.
c. 55, § 1. The "current campaign" means the year beginning January
1st of the calendar year which has a primary,
preliminary or general election for an elective office, and also means for any
special election for an elective office, the period beginning on the date a
special election is scheduled by the speaker of the house of representatives in
accordance with M.G.L. c. 54, § 141 or by the senate in accordance with
the Amendments, Article XXIV, of the State Constitution. The ending date of the
current campaign means the date of the election.
(4)
Coordinated Expenditures Are
Treated as Contributions. For purposes of 970 CMR 2.21, any
expenditure is considered a contribution if it is coordinated and funds a
communication that:
(a) expressly advocates
the nomination, election or defeat of a clearly identified candidate or
candidates; or
(b) is an
electioneering communication, i.e., a communication that names
a clearly identified candidate or candidates and is distributed within 90 days
of an election; or (c) taken as a whole, unambiguously urges a particular
result in an election, unless otherwise exempted from the definition of
"contribution" by any other provision of
970 CMR
2.00 or the "membership communications" exemption in
M.G.L. c. 55, § 1.
(5)
Conduct Constituting
Coordination. A communication is coordinated if made under any of
the following circumstances:
(a)
General Coordination Prior to Communication. The
expenditure is made at the request, suggestion, or direction of, or in
cooperation, arrangement, consultation, concert or coordination with the
candidate or committee on whose behalf, or for whose benefit the expenditure is
made. Such contact must occur prior to the publication or airing of the
communication.
(b)
Involvement in the Specifics of the Communication. The
communication is created, produced, or disseminated after discussion or
consultation between the creator, producer, or distributor of the
communication, or the person or entity paying for that communication, and the
candidate or committee benefited by the communication, regarding the content,
timing, location, mode, intended audience, volume of distribution, or frequency
of the communication.
(6)
Expenditures Presumed to be Coordinated. In addition
to the conduct constituting coordination described in 970 CMR 2.21(5), there is
a presumption that an expenditure funding a communication subject to 970 CMR
2.21 would be a coordinated communication and a contribution under any of the
following circumstances:
(a)
Expenditures Made through an Agent. The expenditure is
made by or through an agent of the candidate or committee in the course of the
agent's involvement in the current campaign.
(b)
Common
Consultants. The person or entity making the expenditure retains
the services of a person or entity such as a political, media or legal
consultant, fundraiser, or polling firm, who concurrently provides either the
candidate or the committee with professional services related to strategy for
the current campaign. This presumption does not apply, however, to an attorney
providing professional services to a candidate or committee solely on
compliance or reporting requirements of the campaign finance law. The
presumption may be rebutted, in accordance with 970 CMR 2.21(7), by evidence
demonstrating that that the services were provided consistent with a previously
established written firewall policy that prohibits the flow of strategic
non-public information to the person or entity making the
expenditure.
(c)
Former
Staff. The person or entity making the expenditure employs a staff
member who previously worked in a senior position or advisory capacity on the
candidate's or officeholder's staff within 90 days prior to the date of the
election in which the expenditure is made. The presumption may be rebutted, in
accordance with 970 CMR 2.21(7), by evidence demonstrating that that the
services were provided consistent with a written firewall policy that prohibits
the flow of strategic non-public information to the person or entity making the
expenditure.
(d)
Campaign Needs. The expenditure is based on
information about the candidate's or committee's campaign needs or plans that
the candidate or committee provided to the person or entity making the
expenditure, such as information concerning campaign messaging, planned
expenditures or polling data during the current campaign.
(e)
Fundraising. In
the course of the current campaign, the candidate who benefits from the
expenditure solicits funds for or appears as a speaker or draw at a fundraiser
held by the person or entity making the expenditure.
(f)
Candidate's
Family. The person making the expenditure is a member of the
candidate's immediate family, or if the expenditure is made by an entity, the
entity making the expenditure is established, run, staffed in a leadership
role, or principally funded by an individual who is an immediate family member
of the candidate.
(g)
Republication. A communication relating to a candidate
republishes, in whole or in part, a communication that is posted on the
candidate's Internet or social media site. This presumption shall not apply,
however, to the use of photographs or video taken from the candidate's Internet
or social media site, provided there is no discussion with the candidate or
committee prior to the expenditure relating to the details of the
communication.
(h)
Advance Notification. The person or entity making a
communication provides advance notification to the candidate or committee of
the planned expenditure.
(7)
Rebuttal of Presumption and
Expenditures Not Presumed to Be Coordinated. An expenditure is not
considered to be coordinated if made consistent with a firewall policy
described in 970 CMR 2.21(7)(a). In addition, a person or entity that has made
an expenditure that is presumptively coordinated may seek to rebut the
presumption by submitting evidence to OCPF demonstrating that the expenditure
was independent. Relevant facts that may be submitted include the expenditure
maker's history of making independent expenditures or electioneering
communications, as well as facts relating to the timing, content and geographic
distribution of a communication. In addition, expenditures that take place
solely under the circumstances described in 970 CMR 2.21(7)(b) through (g) are
also not, absent other factors indicating coordination, presumed to be
coordinated:
(a)
Written Firewall
Policy. A person or entity that provides a candidate or committee
with professional services related to campaign or fundraising strategy
implements a firewall policy that meets the criteria in 970 CMR 2.21(7)(a) to
prohibit the flow of strategic non-public information between the individual or
entity and the campaign.
1. The firewall
policy must designate specific staff that will solely service the candidate,
and specific staff that will solely service persons making independent
expenditures or electioneering communications;
2. The firewall policy must provide for
physical and technological separations to ensure that strategic non-public
information does not flow between the person or entity and the candidate or
committee; and
3. The firewall
policy must be written, and distributed to all relevant employees, consultants,
and clients affected by the policy.
(b)
Photographs. The
person or entity making the expenditure uses a photograph of the candidate,
provided there is no discussion with the candidate or committee prior to the
expenditure relating to the details of the expenditure.
(c)
Prior
Contribution. The person or entity making the expenditure has
previously made a contribution to the candidate or committee.
(d)
Informed after the
Fact. A person or entity informs a candidate or committee after
the publication or airing of a communication that the person or entity has paid
for the communication, if there is no other exchange of information, not
otherwise available to the public, relating to the details of the expenditure
and no discussion or exchange of information relating to any future expenditure
that may be made by the person or entity.
(e)
Candidate or Committee
Forwards the Communication after the Fact. The candidate or
committee learn of the communication after the fact and then forwards the
communication to potential supporters.
(f)
Hyperlink. The
communication includes a hyperlink to the Internet website or a social media
page of a candidate or committee, provided there is no discussion with the
candidate or committee regarding the planned use of the hyperlink.
(g)
Interviews and Distribution
of Questionnaires to Candidates for Purposes of Gathering Information from All
Candidates. OCPF considers several factors to determine whether
the activity prior to the making of expenditures supporting candidates should
be considered bona fide information gathering from all
candidates for a particular office or coordination resulting in the making of
in-kind contributions. For purposes of 970 CMR 2.21, bona fide
means expenditures made to gather information from all candidates for a
particular office, and not made for the purpose of supporting or opposing a
candidate or candidates. The factors to be considered include, but are not
limited to, an assessment of the content of the questionnaires or interviews,
and of any subsequent communications between the candidates and the individual
or entity making expenditures to support endorsed candidates. In addition, OCPF
would consider the existence of a written firewall designed to prohibit the
flow of strategic non-public information between the person or entity paying
for a communication and the candidate or committee supported by a
communication, as defined in 970 CMR 2.21(7)(a), to be a relevant
factor.
(8)
Ballot Question Related Expenditures. 970 CMR 2.21(4)
through (7) apply to communications made to support or oppose a ballot
question. For example, a communication made to influence a ballot question must
be disclosed by a ballot question committee organized to influence the question
as an in-kind contribution to the ballot question committee from the individual
or entity paying for the communication if the individual or entity coordinated
the communication with the ballot question committee.
(9)
Coordination by Independent
Expenditure PACs. 970 CMR 2.21(4) through (7) apply to
communications made by independent expenditure PACs. Independent expenditure
PACs may not, consistent with M.G.L. c. 55, § 18A, coordinate expenditures
with candidates, traditional PACs or party committees.
