Earlier I said
I thought it would be a mistake
even to try to ban 'coordination' between candidates and independent expenditure groups. Let me try to explain why.
Let's take a group at random. The Sierra Club or the Christian Coalition. Each group has deeply woven ties to the Democratic and Republican parties, respectively. It's in the nature of things that the Sierra Club or perhaps the AFL-CIO will be in on-going close contact with the members of the Democratic party. The candidates, the leadership, etc.
It's in the nature of things, normal, expected and most importantly, right. They're ideological allies. They share common goals both in terms of whom to elect and what legislation to pass.
They will also discuss political strategy. They can't help working together towards common goals, even if they avoid explicit conversations on the topic.
Now I know this isn't exactly what the anti-coordination folks are talking about when they talk about cracking down on what they call "so-called independent expenditure groups." And I agree that among friends we might be able to agree on when someone crossed the line and when they didn't.
But that's the point.
These things aren't decided among friends. Quite the opposite. They're decided among prosecutors and their potential targets.
The problem with getting into this thicket is that politicians and political advocacy groups would, in the nature of things, constantly be operating in a gray area where they were either a) discharging their highest duties as citizens by participating vigorously in civic life or b) committing serial felonies.
Yes, some examples would fall easily into either category. But most would not, I suspect. And the serious players - game theory being what it is - would necessarily have to run close to the line.
The problem here is not that the intent of the law is necessarily ill-conceived or constitutionally impermissible - though I suspect both are likely the case - but that the enforcement of the law would necessarily be arbitrary and political.
More on this later.