[Code of Federal Regulations]

[Title 11, Volume 1]

[Revised as of January 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 11CFR109.21]

[Page 151-154]

                       TITLE 11--FEDERAL ELECTIONS

                 CHAPTER I--FEDERAL ELECTION COMMISSION

PART 109_COORDINATED AND INDEPENDENT EXPENDITURES (2 U.S.C. 431(17), 

441a(a) and (d), AND PUB. L. 107-155 SEC. 214(c))--Table of Contents

                         Subpart C_Coordination

Sec. 109.21  What is a ``coordinated communication''?

    (a) Definition. A communication is coordinated with a candidate, an 

authorized 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.

    (b) Treatment as an in-kind contribution and expenditure; 

Reporting--(1) General rule. A payment for a coordinated communication 

is made for the purpose of influencing a Federal election, and is an in-

kind contribution under 11

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CFR 100.52(d) to the candidate, authorized committee, or political party 

committee with whom or which it is coordinated, unless excepted under 11 

CFR part 100, subpart C, and must be reported as an expenditure made by 

that candidate, authorized committee, or political party committee under 

11 CFR 104.13, unless excepted under 11 CFR part 100, subpart E.

    (2) In-kind contributions resulting from conduct described in 

paragraphs (d)(4) or (d)(5) of this section. Notwithstanding paragraph 

(b)(1) of this section, the candidate, authorized committee, or 

political party committee with whom or which a communication is 

coordinated does not receive or accept an in-kind contribution, and is 

not required to report an expenditure, that results from conduct 

described in paragraphs (d)(4) or (d)(5) of this section, unless the 

candidate, authorized committee, or political party committee, or an 

agent of any of the foregoing, engages in conduct described in 

paragraphs (d)(1) through (d)(3) of this section.

    (3) Reporting of coordinated communications. A political committee, 

other than a political party committee, that makes a coordinated 

communication must report the payment for the communication as a 

contribution made to the candidate or political party committee with 

whom or which it was coordinated and as an expenditure in accordance 

with 11 CFR 104.3(b)(1)(v). A candidate, authorized committee, or 

political party committee with whom or which a communication paid for by 

another person is coordinated must report the usual and normal value of 

the communication as an in-kind contribution in accordance with 11 CFR 

104.13, meaning that it must report the amount of the payment as a 

receipt under 11 CFR 104.3(a) and as an expenditure under 11 CFR 

104.3(b).

    (c) Content standards. Each of the types of content described in 

paragraphs (c)(1) through (c)(4) satisfies the content standard of this 

section.

    (1) A communication that is an electioneering communication under 11 

CFR 100.29.

    (2) A public communication that disseminates, distributes, or 

republishes, in whole or in part, campaign materials prepared by a 

candidate, the candidate's authorized committee, or an agent of any of 

the foregoing, unless the dissemination, distribution, or republication 

is excepted under 11 CFR 109.23(b). For a communication that satisfies 

this content standard, see paragraph (d)(6) of this section.

    (3) A public communication that expressly advocates the election or 

defeat of a clearly identified candidate for Federal office.

    (4) A communication that is a public communication, as defined in 11 

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

    (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.

    (d) Conduct standards. Any one of the following types of conduct 

satisfies the conduct standard of this section whether or not there is 

agreement or formal collaboration, as defined in paragraph (e) of this 

section:

    (1) Request or suggestion. (i) The communication is created, 

produced, or distributed at the request or suggestion of a candidate or 

an authorized committee, political party committee, or agent of any of 

the foregoing; or

    (ii) The communication is created, produced, or distributed at the 

suggestion of a person paying for the communication and the candidate, 

authorized committee, political party committee, or agent of any of the 

foregoing, assents to the suggestion.

    (2) Material involvement. A candidate, an authorized committee, a 

political party committee, or an agent of any of the foregoing, is 

materially involved in decisions regarding:

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    (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.

    (3) Substantial discussion. The communication is created, produced, 

or distributed after one or more substantial discussions about the 

communication between the person paying for the communication, or the 

employees or agents of the person paying for the communication, and the 

candidate who is clearly identified in the communication, or his or her 

authorized committee, or his or her opponent or the opponent's 

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

of the foregoing. A discussion is substantial within the meaning of this 

paragraph if information about the candidate's or political party 

committee's campaign plans, projects, activities, or needs is conveyed 

to a person paying for the communication, and that information is 

material to the creation, production, or distribution of the 

communication.

    (4) Common vendor. All of the following statements in paragraphs 

(d)(4)(i) through (d)(4)(iii) of this section are true:

    (i) The person paying for the communication, or an agent of such 

person, contracts with or employs a commercial vendor, as defined in 11 

CFR 116.1(c), to create, produce, or distribute the communication;

    (ii) That commercial vendor, including any owner, officer, or 

employee of the commercial vendor, has provided any of the following 

services to the candidate who is clearly identified in the 

communication, or his or her authorized committee, or his or her 

opponent or the opponent's authorized committee, or a political party 

committee, or an agent of any of the foregoing, in the current election 

cycle:

    (A) Development of media strategy, including the selection or 

purchasing of advertising slots;

    (B) Selection of audiences;

    (C) Polling;

    (D) Fundraising;

    (E) Developing the content of a public communication;

    (F) Producing a public communication;

    (G) Identifying voters or developing voter lists, mailing lists, or 

donor lists;

    (H) Selecting personnel, contractors, or subcontractors; or

    (I) Consulting or otherwise providing political or media advice; and

    (iii) That commercial vendor uses or conveys to the person paying 

for the communication:

    (A) Information about the clearly identified candidate's campaign 

plans, projects, activities, or needs, or his or her opponent's campaign 

plans, projects, activities, or needs, or a political party committee's 

campaign plans, projects, activities, or needs and that information is 

material to the creation, production, or distribution of the 

communication; or

    (B) Information used previously by the commercial vendor in 

providing services to the candidate who is clearly identified in the 

communication, or his or her authorized committee, or his or her 

opponent or the opponent's authorized committee, or a political party 

committee, or an agent of any of the foregoing, and that information is 

material to the creation, production, or distribution of the 

communication.

    (5) Former employee or independent contractor. Both of the following 

statements in paragraph (d)(5)(i) and (d)(5)(ii) of this section are 

true:

    (i) The communication is paid for by a person, or by the employer of 

a person, who was an employee or independent contractor of the candidate 

who is clearly identified in the communication, or his or her authorized 

committee, or his or her opponent or the opponent's authorized 

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

foregoing, during the current election cycle; and

    (ii) That former employee or independent contractor uses or conveys 

to the person paying for the communication:

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    (A) Information about the clearly identified candidate's campaign 

plans, projects, activities, or needs, or his or her opponent's campaign 

plans, projects, activities, or needs, or a political party committee's 

campaign plans, projects, activities, or needs, and that information is 

material to the creation, production, or distribution of the 

communication; or

    (B) Information used by the former employee or independent 

contractor in providing services to the candidate who is clearly 

identified in the communication, or his or her authorized committee, or 

his or her opponent or the opponent's authorized committee, or a 

political party committee, or an agent of any of the foregoing, and that 

information is material to the creation, production, or distribution of 

the communication.

    (6) Dissemination, distribution, or republication of campaign 

material. A communication that satisfies the content standard of 

paragraph (c)(2) of this section or 11 CFR 109.37(a)(2)(i) shall only 

satisfy the conduct standards of paragraphs (d)(1) through (d)(3) of 

this section on the basis of conduct by the candidate, the candidate's 

authorized committee, or the agents of any of the foregoing, that occurs 

after the original preparation of the campaign materials that are 

disseminated, distributed, or republished. The conduct standards of 

paragraphs (d)(4) and (d)(5) of this section may also apply to such 

communications as provided in those paragraphs.

    (e) Agreement or formal collaboration. Agreement or formal 

collaboration between the person paying for the communication and the 

candidate clearly identified in the communication, his or her authorized 

committee, his or her opponent, or the opponent's authorized committee, 

a political party committee, or an agent of any of the foregoing, is not 

required for a communication to be a coordinated communication. 

Agreement means a mutual understanding or meeting of the minds on all or 

any part of the material aspects of the communication or its 

dissemination. Formal collaboration means planned, or systematically 

organized, work on the communication.

    (f) Safe harbor for responses to inquiries about legislative or 

policy issues. A candidate's or a political party committee's response 

to an inquiry about that candidate's or political party committee's 

positions on legislative or policy issues, but not including a 

discussion of campaign plans, projects, activities, or needs, does not 

satisfy any of the conduct standards in paragraph (d) of this section.