When “Testing the Waters” Tests the Limits of Coordination Restrictions: Revising FEC Regulations to Limit Pre-Candidacy Coordination
By Marc E. Klepner
During the preliminary stages of the 2016 presidential election, many prospective candidates took an active role in the Super PACs that would eventually support them after they became candidates. The regulatory system in place provides clear restrictions on Super PACs’ abilities to coordinate with candidates; however, what is less clear is whether such regulations restrict the behavior of individuals during pre-candidacy, known under Federal Election Commission (FEC) regulations as the “testing-the-waters” phase. This Note gives an overview of the laws and regulations governing Super PACs, as well as the regulations and FEC guidance concerning when an individual becomes a candidate. This Note then examines the lawfulness of noncandidate coordination with Super PACs through an analysis of FEC Advisory Opinion 2015-09. Lastly, this Note advocates for further regulation and proposes several new regulations that should be adopted by the FEC to restrict this type of precandidacy conduct.