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INCONCEIVABLE: Mueller wrote: "'coordination' does not have a settled definition in federal criminal law" and then proceeded to make up a definition contrary to longstanding federal campaign finance law by requiring an "agreement" between the Trump campaign and Russians.
52 USC 30116(a)(7)(B)(i) states that “expenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents, shall be considered to be a contribution to such candidate”
This is known to election lawyers as the "coordination" statute. In 2002 (BCRA) Congress ordered FEC to tighten up regulations implementing this statute, specifically stating that the new regulations "shall not require agreement or formal collaboration to establish coordination.”
Congress understood from experience that an "agreement" requirement rendered coordination laws meaningless. NONE of the FEC's multiple coordination regulations require an agreement.
Under FEC regulation 11 CFR 109.20: “Coordinated means made in cooperation, consultation or concert with, or at the request or suggestion of, a candidate, a candidate's authorized committee, or a political party committee ... [or] agent thereof.”
11 CFR 109.21: “The communication is created, produced, or distributed at the request or suggestion of a candidate …; or … at the suggestion of a person paying for the communication and the candidate … assents to the suggestion.”
11 CFR 109.21 regulates as "coordinated" a communication "created, produced, or distributed at the request or suggestion of a candidate …; or … at the suggestion of a person paying for the communication and the candidate … assents to the suggestion.”
109.21 also regulates communication as "coordinated" if a candidate is "materially involved in decisions regarding … content of the communication … intended audience for the communication … means or mode of the communication … specific media outlet used for the communication"
And 109.21 treats as "coordinated" a communication “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 … and the candidate[.]”
Here's the entire section of the Mueller report summarizing campaign finance laws potentially applicable to interactions between the Trump campaign and Russia. Not a SINGLE reference to campaign finance law "coordination" statutes or regulations. This is a real head-scratcher!
Though Mueller wrote "'coordination' does not have a settled definition in federal criminal law" and made no mention of campaign finance coordination laws in report, 2015 DOJ prosecution of campaign finance coordination case resulted in 24 mo sentence justice.gov/opa/pr/campaig…
SCOTUS in McConnell v. FEC (2003): “since our decision in Buckley [1976], it has been settled that expenditures by a noncandidate ... coordinated with the candidate and his campaign’ may be treated as indirect contributions subject to FECA's source and amount limitations.”
SCOTUS in McConnell rejected vagueness and overbreadth arguments against BCRA provision that coordination” “shall not require agreement or formal collaboration.”
SCOTUS: "We are not persuaded that the presence of an agreement marks the dividing line between expenditures that are coordinated--and therefore may be regulated as indirect contributions--and expenditures that truly are independent."
SCOTUS: “[T]he rationale for affording special protection to wholly independent expenditures has nothing to do with the absence of an agreement and everything to do with the functional consequences of different types of expenditures.”
SCOTUS: "[E]xpenditures made after a 'wink or nod' often will be "as useful to the candidate as cash."
“Congress has always treated expenditures made ‘at the request or suggestion of’ candidate as coordinated. A supporter easily could comply with a candidate's request ... without agreeing to do so and resulting expenditure would be 'virtually indistinguishable from" contribution.
“[W]e cannot agree with the submission that [BCRA] is overbroad because it permits a finding of coordination or cooperation notwithstanding the absence of a pre-existing agreement.”
“Nor are we persuaded that the absence of an agreement requirement renders [BCRA] unconstitutionally vague. An agreement has never been required to support a finding of coordination with a candidate under” FECA.
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