Maine Ethics suggests going further than federal rules in policing candidate communications

Maine’s ethics watchdog is adopting a more stringent approach than the federal government regarding candidate communications, particularly those seemingly targeting outside groups seeking to advertise on a candidate’s behalf.

State and federal campaign finance laws bar candidates from coordinating with political action groups, which can spend unlimited funds and often do not disclose their donors. One way that candidates evade those restrictions is through so-called “red boxing,” a tactic in which a campaign publishes messaging and instructions to supportive PACs on their website. 

During a Maine Ethics Commission meeting on Wednesday, the five commissioners discussed “red boxing” complaints against three candidates running in the Democratic primary for governor — Troy Jackson, Hannah Pingree and Nirav Shah — and unanimously agreed to circulate an advisory statement warning candidates that publishing certain information that results in a compatible advertisement may be considered a violation of Maine’s campaign finance laws. 

“If a PAC engages in the requested advertising in response to the red boxed instructions, the candidate likely has received a contribution that may exceed legal limits — even in situations where the candidate engaged in no private communications or pre-arrangements with the PAC,” the memo reads. “If a complaint to the Commission provides sufficient grounds to believe an over-the-limit contribution occurred, it will investigate.”

Commissioners added a note that specifies Maine clean election candidates “should be aware that any spending caused by a red box could be considered an illegal contribution under the Maine Clean Elections Act.”

Assistant Attorney General Jonathan Bolton, who drafted the memo, noted during Wednesday’s meeting that the key question for the group to consider is, “what does it mean to make a request or suggestion that results in a contribution?”

The Federal Election Commission, which oversees federal campaign finance rules, uses a standard that pre-dates super PACs and current election spending trends. As Bolton explained, the FEC holds that for a request or suggestion to result in what they consider a contribution, “it has to be made to a selected audience,” such as an email to a specific group of people. In contrast, Bolton said, if that same message is published on a website and put in a red box, “the FEC would say, sort of as a bright line matter, that is not a request or suggestion.”

Bolton said he believed this approach creates the risk of quid pro quo corruption and that the law should be interpreted differently, particularly considering the current level of outside spending.

If a spender does what a campaign is instructing them to on their website, Bolton argued, “you’re doing something that’s valuable for that campaign, something that they want you to do.”  Instead, he suggested that the commission adopt a more aggressive approach and, according to the memo, “treat red boxing by a candidate as a request or suggestion that others engage in the advertising specified in the red boxed instructions.”

Maine Citizens for Clean Elections and other pro-democracy groups had lobbied for the change. 

“We commend the Ethics Commission for affirming what we’ve long argued: red boxing is prohibited in Maine and acting swiftly to protect the integrity of Maine elections.

Chrissy Hart, executive director of Maine Citizens for Clean Elections, said the group commended the Ethics Commission for “acting swiftly to protect the integrity of Maine elections.”

“Red boxing is a coordination tactic — a way for candidates to direct outside PAC spending while claiming independence, in direct violation of Maine law,” Hart continued. “Under Maine’s law governing campaign finance rules, which are stricter than federal campaign finance law, spending made in response to candidate guidance counts as a contribution and can illegally circumvent spending limits.”

Bolton acknowledged that the guidance is open to interpretation and carries a risk of litigation, particularly around First Amendment concerns.

Kate Knox, an attorney with Bernstein Shur representing the Pingree campaign, said she thought the advisory amounted to “a de facto ban on red boxing.” Knox said she didn’t understand why the commission wouldn’t say outright that red boxing “violates the statute in the rule, and you’re not allowed to do that.”

Similarly, Newell Auger, an attorney with Pierce Atwood representing the Shah campaign, suggested it would be more appropriate to seek a legislative resolution, which the commission agreed it would look into.

Commission Chair William Schneider defended the approach. “I think if you’re going to read the advisory statement and decide not to do what it advises against, then it’s served its purpose,” he said.

“I think it’s an area in which we’re trying to encourage candidates not to take the risk that’s inherent in red boxing, that someone will pick up the suggestion and make an improper contribution to their campaign,” he added, “We’re trying to help candidates avoid a risk that’s out there.”