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Red-boxing

Red-boxing is a tactic used by American political candidates to coordinate with their political action committees (PACs) in a way that circumvents campaign finance laws. Political campaigns place statements or requests on public campaign websites which are then used by PACs to support the candidate. The name for the practice comes from the red-colored box that often surrounds the instructions for PACs on campaign websites.[1][2] It is used by both major American parties, but was noted for its use by Democratic candidates in primary elections in 2022.[3]

Campaigns will use boxes to focus PACs' attention on certain aspects of opposing candidates' biographies, including past controversies. They often include detailed instructions on what type of ad to use, what areas to target, and what age, gender, or ethnicity to appeal to.[1] Red boxes are most often located in the "Media Resources" or "Media Center" sections of a campaign website where political operatives know to look.[1] Instructions sometimes use terms like "hear" for radio ad requests, "read" for direct mail, "see" for television, and "see while on the go" for digital ads.[1]

History

In a 2021 Yale Law Journal article, Kaveri Sharma traced the origin of red-boxing to shortly after the United States Supreme Court decided Citizens United v. Federal Election Commission which led to a huge increase in super PACs and overall independent campaign expenditure.[2]: 1905  Initially campaigns would put 'top hits' against opponents on their websites in the hope that they would be used by PACs but this proved to be too subtle to be effective.[2]: 1907  After the election cycle, campaign operatives, PAC employees and party staff gathered to improve the way in which information was exchanged, settling on red boxes.[2]: 1908  Because staff regularly switched between working for campaigns, PACs and party organisations, the information was easily disseminated and the practice developed and became an open secret.[2]: 1908  Messaging has been refined after each election cycle in order for the process to be even more effective.[2]: 1908 

Sharma proposes several 'magic signals' to help to define red-boxing, acting much like the 'eight magic words' used to define express advocacy.[2]: 1909  These signals are:

  • The colored box (which is not necessarily red) used to highlight information for PACs.[2]: 1910 
  • The phrase 'voters need to know' or a state-specific equivalent such as 'all Montanans need to know'.[2]: 1911 
  • The use of party-controlled microsites which have been specifically made for PACs to be able to find redboxes for many candidates in a short amount of time. The Democratic Congressional Campaign Committee, the National Republican Congressional Committee, and the National Republican Senatorial Committee all operated redbox microsites.[2]: 1912 
  • The inclusion of targeting information which indicates an advertisement's intended audience, timing and means of communication. This is noted to be showing that redbox information is meant for PACs rather than for voters or the general public.[2]: 1914 
  • The inclusion of 'back-up' documents to provide verification of redbox claims and production elements (like photos, audio or video footage) to help PACs produce the desired adverts.[2]: 1914–15 

Instances of use

A 2022 New York Times survey found that at least 19 Democrats running in four states holding contested congressional primaries on May 16, 2022, had used some kind of red-boxing. Republicans did not rely on red-boxing as much, largely using other tactics to communicate with PACs.[1]

Red-boxing in Jessica Cisneros' 2022 campaign

Response

According to Adav Noti, the legal director of campaign finance watchdog group the Campaign Legal Center, "The coordination of super PACs and candidates is the primary mechanism for corruption of federal campaigns in 2022."[1]

Legality

Federal level

Federal law does not explicitly ban red-boxing, but coordination between candidates and super PACs is prohibited.[14] In a 2022 article in the American Bar Association's Human Rights Magazine, Paul M. Smith and Saurav Ghosh said that red-boxing and using "coded instructions" to direct the actions of super PACs amounted to "illegal coordination".[19]

However, complaints about illegal coordination between political campaigns and PACs involving public material posted online submitted to the Federal Election Commission have not resulted in any action.[1] In 2020, the Foundation for Accountability and Civic Trust made a complaint to the FEC against John Hickenlooper's 2020 Senate campaign alleging coordination between the Hickenlooper campaign and Senate Majority PAC, who used video footage from a previous Hickenlooper advert and talking points from Hickenlooper's campaign website to make an advert supportive of his campaign.[14] The FEC's general counsel recommended that the FEC investigate the re-use of video footage but not the alleged coordination.[20] In November 2022, the FEC dismissed the complaints using prosecutorial discretion.[21]

State level

In August 2022, The Philadelphia Inquirer reported that the Philadelphia Board of Ethics was considering an amendment to the city's campaign finance regulations which would explicitly ban red-boxing. Opponents of the amendment argued that its wording was too broad, and would also cover normal campaign messaging.[22] The Board voted unanimously to approve the motion once it was amended to be more specific.[16]

Hawaii Senate Bill 1212 which prohibited red-boxing under the state's campaign law was passed on January 25, 2023 but was amended in the committee stage so that it does not take affect until March 22, 2075.[23][24]

References

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