Candidates are giving lowkey instructions on how to attack their opponents. Here’s how it works

This story was originally published by CalMatters. Sign up for their newsletters.Some candidates for the California Legislature are increasingly using a controversial tactic that experts and watchdog organizations say appears to flout the state’s campaign finance laws.A CalMatters’ survey of legislative race websites found at least 14 candidates have detailed campaign messaging packaged on their websites in ways that make it easy for independent expenditure committees to use in advertisements.The technique, known as “red boxing,” is being increasingly used in the absence of oversight from state regulators. CalMatters found at least three instances in which outside groups made digital campaign ads that mirrored the packaged messaging on candidate websites. Under state campaign rules, ads made “at the behest” of official campaigns are presumed to be “coordinated” spending — not independent expenditures — and may illegally exceed campaign finance contribution limits.  In one example, a section in a red box on Assembly candidate Jessie Lopez’s website says “Democratic and (No Party Preference) voters should know” that her competitor, fellow Santa Ana city councilmember David Penaloza, voted to approve a city contract with the surveillance camera company Flock, that he is funded by special interests, and that Jessie Lopez will “fight for working people.” On Oct. 14, a 15-second ad popped up on the Facebook and Instagram feeds of Santa Ana residents highlighting Penaloza’s approval of the Flock contract, his funding from “big tech billionaires,” and nurses’ and educators’ support for Lopez. It was paid for by an outside group, Working People United sponsored by SEIU California State Council, which has spent at least $1.4 million in support of Lopez since April. Lopez did not respond to a text message requesting comment, and her campaign did not respond to emailed inquiries about whether the information was intended for an independent expenditure committee. Working People United also did not respond to a request for comment.But campaign strategists and watchdog groups agree the practice is becoming widespread in competitive California races.“After Citizens United and all of that, and big money getting into politics, it’s gotten crazy, right? Things have just gotten unwieldy,” said Jorge Contreras, California Director of the Working Families Party, which supports Lopez.  “Because of that, the candidates are using red boxes to try to communicate.”“Red boxing” explainedDonors in California elections, including corporations, unions, and wealthy individuals, are limited in how much they’re allowed to give to candidates running for office. Under rules from the Fair Political Practices Commission, the state’s campaign finance watchdog, they can give candidates up to $5,900 per election. However, big spenders can give unlimited amounts to independent expenditure committees that run ads supporting or opposing candidates. FPPC rules say the committees’ spending can be unlimited as long as the payments “are not coordinated with or made at the behest of the candidate.” Similar rules exist for federal congressional contests. However, over the past decade, red boxing has cropped up in congressional races. Candidates leave instructions, typically outlined in a red box, for independent spenders to follow when creating the ads. In some cases, they are even specific about which demographic groups to target.The red boxes are a way to “sidestep” contribution limits, according to Patrick Llewellyn, the director of state campaign finance at the Campaign Legal Center, a nonprofit that advocates for campaign finance reform. He said it can create the appearance of corruption, even if there is no explicit agreement between the candidate and the independent committee.  “When a candidate red boxes and spending is then done in response to that red box, it just belies any commonsense understanding of independence,” he said, adding that the phenomenon has spread across state and local races nationwide, although officials in some areas have cracked down in recent years.FPPC spokeswoman Shery Yang said there are rules on the books regulating red boxing.In an email, she said “common forms of red boxing would generally be presumed to constitute coordination under existing FPPC regulations.” The regulations say an expenditure is presumed to be coordinated if it is either based on information about the campaign’s needs provided “directly or indirectly” or if it disseminates “in whole or in substantial part, a communication, including video footage, designed, produced, paid for or distributed by the candidate or committee.”Dozens of candidates have several minutes of B-roll footage posted on their sites that is routinely used by independent expenditure committees in their ads. Yang did not respond to questions about whether the commission, which is notoriously slow in investigating complaints, has ever enforced the rules around red boxing, or if it is investigating any cases this year. Democratic strategist Steven Maviglio said the practice has “really accelerated” during the last two election cycles as campaigns have seen the tactic work on the federal level. And campaigns don’t think they’ll get caught, Maviglio said. “Like it or not, the state watchdog doesn’t have the capacity to do their job,” he said. Former FPPC Chairman Dan Schnur said the agency’s lack of action may boil down to a lack of resources.  “The FPPC’s challenge is that it’s funded by the legislators who they’re required to oversee,” Schnur said. “There’s not much of an incentive for an elected official to give them enough funding or staff to do their job in a comprehensive way.”Staying “on message”In Assembly District 36 on the southern border, Democrats have a 12% registration advantage over Republicans. That didn’t stop Marine veteran Jeff Gonzalez from flipping the seat red in 2024. Now, Gonzalez is fighting to protect the seat from his Democratic challenger,