07.05.2016recent reports filed with the Federal Election Commission ("FEC"), there is a good chance that many ads will be run by Super PACs. Although Super PACs are required to disclose their donors, it is not always clear who is behind a Super PAC ad and whether a Super PAC is truly independent from a candidate, a party or their agents. The FEC has, therefore, adopted a three-prong test to determine whether a Super PAC is acting independently and is, therefore, entitled to receive unlimited contributions. Under the FEC's coordination test, when an election-related communication (content prong) has been paid for by a third-party (payment prong), the FEC will ask the following questions (conduct prong) to determine whether the ad was coordinated:
- Was the communication created, produced or distributed at the request or suggestion of the candidate, party or their agents?
- Was the candidate, party committee or their agents materially involved in decisions related to the ad’s content, intended audience, mode of communications, etc.?
- Were there substantial discussions between the Super PAC and the candidate, party or their agents?
- Does the Super PAC share a common vendor with the candidate, party or their agents?
- Does the Super PAC employ an employee or independent contractor who worked for the candidate or party committee during the previous 120 days?