Voters Need to Know: Assessing the Legality of Redboxing in Federal Elections
abstract. This Note presents the first analysis of “redboxing” and its legality. Redboxing is the term used by campaign operatives to describe when candidates and political parties post public, online messages to share campaign strategy with allied super political action committees (PACs). In this Note, I provide the first descriptive account of the practice, and assess its legality under the Federal Election Commission’s (FEC) three-part test for coordination. I contend that the practice violates federal law prohibiting strategic coordination between super PACs, candidates, and parties, as redboxes are illegal requests for super PACs to run an advertisement to help a candidate. I argue that the practice harms democratic accountability and contributes to political polarization by introducing the risk of quid pro quo corruption and allowing candidates to evade the monetary and reputational costs of their own political speech. To begin to root out the practice, I propose litigation strategies that can be implemented in enforcement actions before the FEC, as well as administrative reforms to strengthen coordination rules. Ultimately, I argue that the practice of redboxing reveals just how unsophisticated and misguided the Supreme Court’s campaign-finance jurisprudence really is—and that the FEC’s test for coordination does not draw administrable lines but creates gaping loopholes. Congress must act to force the FEC to adopt a workable, properly calibrated test to deal with redboxing and other coordinative practices that have emerged in the post-Citizens United world.
author. Yale Law School, J.D. expected 2022. I am grateful to Doug Spencer for his feedback on earlier drafts, guidance, and encouragement. I would also like to thank Nicholas Parrillo, Daniel Markovits, Francesca Procaccini, and Floyd Abrams for discussions that informed the direction of this Note. Finally, I would like to thank Jordan Dannenberg and the editors of the Yale Law Journal for their thoughtful and thorough editing. I dedicate this Note to Nicholas Valentino, Andrei Markovits, Myna Sharma, Lakshmi Sharma, Anil Sharma, and Dave Tollaksen. All errors and omissions are my own.
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 website—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 candidates 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 PAC’s 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 campaign 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-kind 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.