Super PAC Debate Spotlights Illegal Coordination

In the midst of their wrangling this week with GOP leaders over a controversial spending bill rider to lift campaign-finance restrictions on political parties, members of the House’s far-right Freedom Caucus had a bright idea.

Why not compromise, Freedom Caucus members argued, by lifting the limits on outside groups as well as political parties? Conservatives had hated Senate Majority Leader Mitch McConnell’s first idea, which was to lift the cap on what parties may spend in coordination with candidates. That struck Tea Party lawmakers and activists as a power grab by the GOP establishment.

Under the right-wingers’ plan, non-party super PACs and politically active nonprofits would also be free to coordinate directly with candidates. As Freedom Caucus Chairman Jim Jordan declared at a “Conversations With Conservatives” event on Capitol Hill this week, freeing up the parties is “not the direction you need to go unless you’re going to free up restrictions on everyone.”

The proposed compromise drew instant fire from progressive activists. Unleashing super PACs and other non-party groups to work hand-in-hand with candidates directly contradicts the Supreme Court’s logic in its 2010 Citizens United v. Federal Election Commission ruling to deregulate independent spending.

As Justice Anthony M. Kennedy wrote for the majority at the time: “By definition, an independent expenditure is political speech presented to the electorate that is not in coordination with a candidate.” Because the expenditures are independent, Kennedy concluded, they “do not give rise to corruption or the appearance of corruption.”

The Caucus’s proposal to allow coordination by outside groups “is the same as effectively allowing unlimited contributions to be given directly to a candidate,” warned a statement from Fred Wertheimer, president of the watchdog group Democracy 21. “In essence, the proposal would allow a candidate to completely bypass the $2,700 limit on the amount a donor can give to a candidate for an election.”

Progressive alarm over the conservative campaign-finance plan is probably overstated. Campaign financing is only one of several issues, from federal abortion funding to tax extenders, now bogging down the omnibus spending bill. If anything, conservatives may have done progressive advocates a favor by turning the spotlight on how meaningless the existing ban on candidate-super PAC coordination has become.

Super PACs have raised more than $314 million in this election so far, according to the nonpartisan Center for Responsive Politics, and the bulk of those receipts—$250 million—have gone to super PACs focused on electing a single candidate.

These single-candidate super PACs, which now number more than 100 and have rallied behind virtually evey presidential hopeful and a long list of Senate contenders, increasingly act as auxiliaries of the candidates’ campaigns. Run by close aides of the candidates, the single-candidate super PACs are doing everything from running ads to staging events, selling T-shirts and even handling campaign press inquiries.

The biggest of these is Right to Rise USA, the super PAC backing former GOP Governor Jeb Bush, which has amassed a record $103 million thanks to seven-figure contributions from CEOs, hedge fund managers, and other GOP mega-donors. Right to Rise recently rolled out a major ad campaign attacking businessman and GOP frontrunner Donald Trump. Bush went so far as to help launch the super PAC and raise money for it before he officially declared his candidacy, not even bothering to pretend that he and the group were operating at arm’s length.

Watchdog groups have complained to the Federal Election Commission about Right to Rise and several other super PACs associated with individual candidates. But don’t expect the FEC to take action. Just this week the commission, which is evenly divided between three Democratic and three Republican members, stalemated on a complaint alleging illegal coordination during the 2012 presidential campaign between former Senator Rick Santorum, a Pennsylvania Republican, and the super PAC that backed him, the Red, White and Blue Fund.

“The FEC is clearly incapable of enforcing the campaign finance laws at this point,” said Lawrence Noble, general counsel at the Campaign Legal Center, one of the groups lodging complaints against Santorum and other candidates with cozy super PAC ties.

All this begs the question why McConnell shouldn’t take up Tea Party conservatives on their suggestion, and just nix the coordination ban altogether. FEC regulations that define coordination are extremely narrow to begin with, allowing wide latitude for super PACs to share consultants and even ad footage. The commission stalemates so frequently that candidates openly flout the rules.

It’s probably only a matter of time before the Supreme Court, with its decided tilt toward deregulation, comes out and strikes the existing $2,700 limit on contributions to candidates in any case.

In the meantime, however, those limits remain the law of the land. The FEC may be doing little to enforce the election laws, but a federal court in June sentenced a Virginia political operative to two years in prison for running a super PAC that illegally coordinated with a congressional candidate, in a case brought by the Justice Department. Super PAC-candidate coordination is one are of campaign-finance law where both the Department and the FEC have considerable leeway to prosecute violations more aggressively, according to Noble. Instead of throwing the existing laws out the window, he argues, the government should be enforcing them.