Philly’s Board of Ethics will consider banning super PAC ‘redboxing’ ahead of the 2023 mayoral race

Local election lawyers are pushing back on a proposed change to Philadelphia’s campaign-finance regulations that they say could stifle candidates’ right to free speech.

The Philadelphia Board of Ethics on Wednesday heard testimony on whether it should tighten rules aimed at preventing campaigns from indirectly communicating with political groups that can raise and spend money in unlimited amounts but are prohibited from coordinating with candidates.

The five-member board is considering a proposed amendment to its campaign-finance regulations that aims to crack down on a new strategy known as “redboxing” that some candidates for federal office have used to give instructions to supportive outside spending groups like super PACs without communicating with them directly.

But Philly-based election lawyers say the wording of the amendment, which was proposed by the board’s staff, is too broad and could unintentionally capture normal campaign messaging.

“Finding a way to stop illegal coordination, improper coordination, is a well-intentioned goal. However, we believe this regulation is hitting it with a sledgehammer in an area where delicacy is important,” said attorney Kevin Greenberg, speaking on behalf of six elections lawyers who signed a letter opposing the amendment. “It is our conclusion as a group that these rules as proposed are unworkable, and we would not be able to advise candidates.”

The debate over “redboxing” and other changes to its regulations come as the 2023 mayoral race is beginning to take shape, with Allan Domb on Monday stepping down from his City Council seat to mull a run and others expected to follow. All 17 Council seats will also be on next year’s ballot.

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Recent city elections have increasingly been dominated by outside spending groups, including the last open mayoral election in 2015. In that contest, labor-backed super PACs spent millions to help Mayor Jim Kenney defeat State Sen. Anthony Hardy Williams, who was himself boosted by millions spent by a super PAC bankrolled by deep-pocketed charter-school advocates.

Some of the changes being considered Wednesday by the ethics board are technical edits aimed at making the regulations more clear, and some are meant to align the rules with two campaign-finance bills Council adopted in the spring.

The most significant change, however, is the proposed redboxing ban. The name comes from some candidates’ practice of placing detailed instructions in red boxes on their websites that instruct PACs on how to help their campaigns, sometimes specifying the messaging and type of media to use for advertising, as well as the demographics of the voters they’re hoping to reach.

Louisiana congressional candidate Karen Carter Peterson, for instance, published on her website a red box reading, with some words bolded: “Young Black voters and White Women who are non-GOP voters need to read and see on the go that Karen Carter Peterson has been endorsed by Gary Chambers and Stacey Abrams.”

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In Philadelphia, campaigns are subject to limits on the amount of money they can collect from donors: $3,100 per calendar from individuals, and $12,600 per year from groups like political committees and businesses. Super PACs, however, are not subject to those limits and are consequently not allowed to coordinate with campaigns they are seeking to boost.

The proposed amendment states that, even if a campaign is publishing its strategy to the general public, an expenditure by a super PAC that follows that strategy is still considered to be coordinating with the campaign if “circumstances indicate that the campaign has made the information available so that another person may use that information to make expenditures supporting the campaign in a manner suggested by the campaign.”

When campaigns try to get around that firewall through strategies like redboxing, the Board of Ethics adopts rules to close those loopholes.

Aaron McKean, who works on state and local election reform for the D.C.-based advocacy group Campaign Legal Center, applauded the proposal, saying redboxing “is clearly illegal coordination, and it needs to be regulated.”

“Winks and nods are enough to establish that there’s a coordinated expenditure, and that’s just as good to a candidate as campaign cash,” McKean said. “What we’re talking about here with a red box is much more than winks and nods.”

Adam Bonin, a Philadelphia elections lawyer who has worked with many campaigns for city office, said he supported the board’s goal of preventing redboxing in mayoral and Council elections but is concerned that the wording of the proposed regulation is too vague.

He is worried, for instance, that if a campaign spokesperson publicly states the candidates’ message repeatedly — and that message is then copied by supportive super PACs — that the board may find that to be a violation.

“What [the Board of] Ethics is trying to do here is a well-meaning effort to make that separation more manifest that you can’t sort of coordinate in plain sight,” Bonin said. “But they’re just potentially capturing and chilling too much ordinary campaign speech as part of these efforts.”

The Board of Ethics will take up the amendment at its next meeting Sept. 21.