Voters Need to Know: Assessing the Legality of Redboxing in Federal Elections.

Date01 May 2021
AuthorSharma, Kaveri

NOTE CONTENTS INTRODUCTION 1900 I. REDBOXING FROM 2010 TO TODAY 1904 A. The Emergence of Redboxing 1905 B. The "Magic Signals" of Redboxing 1908 1. The Colored Box 1910 2. The Phrase "Voters Need to Know" 1911 3. Party Committee Microsites 1911 4. Targeting Information 1914 5. Back-Up Documents and Production Elements 1914 C. Super PAC Responses to Redboxes 1916 II. REDBOXING AND THE LAW AGAINST COORDINATION 1918 A. The Three-Part Test for Coordination 1920 B. The Safe Harbor for Publicly Available Information 1926 C. Redboxes Facilitate Unlawful Contributions. 1927 III. THE HARMS OF REDBOXING 1933 A. Threat of Actual and Apparent Quid Pro Quo Corruption 1934 B. Erosion of Accountability Mechanisms for Negative Political Speech 1939 IV. ENFORCEMENT OPPORTUNITIES, CHALLENGES, AND THE POTENTIAL FOR REFORM 1942 A. Enforcement Opportunities 1942 B. Enforcement Challenges 1945 C. Proposals for Clarifying Regulation 1946 1. Guidance on "Magic Signals" 1947 2. Regulation to Shift the Burden of Proof 1948 D. An Appeal for Congressional Action 1949 CONCLUSION 1950 INTRODUCTION

U.S. Senator Jon Tester's campaign changed fifty-six words on its official website on October 11, 2018. (1) At the time, Tester, the Democratic incumbent from Montana, had been fighting for re-election in a state President Trump won by double digits. (2) To the average voter scrolling through the Senator's campaign website, a red-hued box emblazoned with the phrase "AN IMPORTANT UPDATE: What Montanans need to know" may have seemed like nothing more than an innocuous graphic design ploy to attract voters' attention on a crowded webpage. (3) That day, any voter who clicked on the red box would have found a statement alleging that Matt Rosendale, Tester's Republican challenger, was "no friend of veterans." (4) It further recounted four votes that Rosendale previously cast against veterans' interests while he served in the state legislature. (5) The October 11 message also linked to a meticulously curated seven-page document, which provided news clips and roll-call votes to support the allegation of Rosendale's anti-veteran voting record. (6)

Undecided Montana voters who viewed the message behind the red-hued box may have learned of Matt Rosendale's dismal record on veterans issues but likely not much else. After all, average voters would not click the box on Tester's website in search of daily changes. But for those in the know--campaign employees, party-committee staff, and super political action committee (PAC) operatives whose job it was to monitor that page on Tester's campaign web-site--the October 11 message provided a strategy manual hidden in plain sight. The instructions to super PAC operatives that day: run a veterans-benefits-themed attack ad on challenger Matt Rosendale.

And that is precisely what occurred. On October 16, 2018, five days after the Tester campaign updated its "redbox," two independent-expenditure-only political committees (known as "super PACs" (7), VoteVets and Majority Forward, purchased $850,000 of airtime in support of Jon Tester. (8) It is illegal for super PACs to coordinate their spending with the candidates they aim to support. (9) )Yet VoteVets and Majority Forward's ad featured a Vietnam veteran who, straight-to-camera, admonished Matt Rosendale for each of his anti-veteran votes listed in the October 11 redbox. (10) This was not just general message congruence between Tester's campaign and the super PACs; rather, on October 11, the Tester campaign used its public website to request an attack advertisement about discrete votes that the opponent, Matt Rosendale, took against veterans' interests. Five days later, two super PACs delivered a six-figure advertisement citing each of the anti-veteran votes the Tester campaign had wrapped in a bow and presented to them.

There are few coincidences when it comes to the millions of dollars spent to win elections. During campaign season, political operatives on both sides of the aisle engage in the signaling tactic employed by the Tester campaign. Among political professionals, this practice is colloquially called "redboxing"--named for the red-colored box that often accompanies these instructions for super PACs placed on public campaign websites. (11) Candidates and parties use this signaling system to communicate with super PACs, political committees that can raise and spend unlimited funds in federal elections. Redboxes allow can-didates and parties to circumvent campaign-finance limits and direct the expenditures of allied super PACs. As such, the legality of the practice is dubious.

Congress anticipated the possibility of circumvention and built prohibitory regulation into the statutory scheme. A super PACs independent expenditure transforms into a regulated contribution if the super PAC makes the expenditure "in cooperation, consultation, or concert, with, or at the request or suggestion of" a candidate or political party. (12) Candidates, parties, and other political groups that use redboxes to communicate strategy with super PACs deny that the practice amounts to "cooperation," "consultation," or work in "concert" between the groups. (13) They further deny that a redbox communication is a request or suggestion for an advertisement in violation of the statute. Instead, the candidates and political parties who use redboxes to communicate with super PACs contend that the practice is legal and can be nestled within a safe harbor in coordination law which, in certain cases, exempts publicly available information from being used as evidence of illegal coordination.

In the decade since Citizens United v. Federal Election Commission, (14) legal scholars have extensively addressed the impact of independent expenditure groups. (15) There is also no dearth of scholarship on coordination in the campaign-finance literature. (16) And the news media routinely exposes the myriad ways in which real-world campaign practices may run afoul of coordination laws. (17) Only recently, however, has the academy begun to address how cam-paign operations in the age of super PACs can circumvent and undermine the legal foundations integral to campaign-finance law. (18)

This Note offers the first systematic account of redboxing and its legality. I contend that the practice violates federal law prohibiting strategic coordination between super PACs, candidates, and parties, as redboxes are illegal requests for an outside group to run an advertisement to help a candidate. Accordingly, nominally independent spending following a redbox request should be treated as an in-kind contribution to a candidate and subject to strict dollar caps. Moreover, the practice of redboxing violates not only the letter of the law but also the spirit of campaign-finance regulation, which aims to limit actual quid pro quo dealings as well as the appearance of potential corruption. In this Note, I demonstrate that eleven years out from Citizens United, the distinction between "independence" and "coordination," upon which modern federal campaign-finance law is built, is a legal fiction. It is a "paper wall" in need of serious rebuilding. (19)

This Note proceeds in four Parts. Part I develops chronologically to define the practice of redboxing. It recounts the rise of the practice in response to loosened campaign-finance regulation, illustrates the paradigmatic form of the practice, and demonstrates the ways in which super PACs respond to redboxes with advertisements. Next, Part II explains the statutory scheme that animates the law against coordination, including the safe-harbor provision that defenders of redboxing invoke to assert its legality, and applies the law to the practice of redboxing. In this Part, I argue that redboxes are illegal requests for an advertisement from an outside group. As a result, I contend that expenditures made pursuant to a redbox request should be treated as illegal in-ldnd contributions under existing law. In Part III, I discuss the harms of redboxing. I argue that redboxes allow nominally independent expenditures to foment the same threat of quid pro quo corruption that direct contributions to candidates do. Redboxes empower political parties, contributing to increased levels of ideological polarization, and they harm traditional democratic-accountability mechanisms by allowing candidates to systematically evade the monetary and reputational costs of their political speech. Finally, Part IV addresses the opportunities and challenges for enforcement under existing law, suggests changes to Federal Election Commission (FEC) regulations, and implores the new Congress to pursue lasting reform.

  1. REDBOXINC FROM 2010 TO TODAY

    "Redbox" is the term political operatives use to describe a public, online message posted by a candidate or political party to share campaign strategy with allied super PACs. The redbox is "the campaign's guidance on what it thinks it needs" or "what it wants" from outside groups to help the candidate win her race. (20) At the most basic level, there are two parts to a redbox: first, a message about the candidate or her opponent, and second, a signal which differentiates that message from other text on the webpage. Redboxes are the political equivalent of the spy's "dead letter box," employed by intelligence agents to surreptitiously communicate with their informants. (21) They allow political operatives who work for candidates and parties to transmit instructions for advertising, polling and targeting data, and other useful materials to super PACs with the intent to direct the expenditures of these nominally independent groups. The public, indirect nature of the communication strategy, honed over the last decade, allows operatives to plausibly--though disingenuously--deny that they communicate with outside groups to coordinate strategy. This Part presents a chronological account of redboxing to show how the practice originated and how redboxing works from the...

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