Richard Briffault is unfailingly astute in his observations about the campaign finance laws and lucid in expressing them. In the days not too long ago when worries gathered around “527”s, he wrote an insightful essay on that subject. Now, with Super PACs on the minds of campaign finance analysts, he has turned attention to them. His subject is the Super PAC dedicated to the election of a single candidate and run, often with the candidate’s public approval, by former staff and associates. He proposes that the “coordination” standard be re-defined to capture these cases of “disguised contributions” and bring them within limits. These are not independent committees, he argues, but candidate committees in all but the name.

Professor Briffault’s concedes that he is working around a questionable doctrinal edifice—the Buckley contribution and expenditure distinction. “The Supreme Court’s insistence that independent spending does not pose dangers of corruption or the appearance of corruption has been doubtful from the start”, he writes. The Court itself does not fully believe it, as borne out by its detour around the distinction in the Caperton case. But if this is the doctrine of the day, it becomes no more convincing if various types of expenditures are now removed from the category of “independent” to that of “coordinated” and, through this move, converted into contributions.

One could say the opposite about the move: the contribution/expenditure distinction is strained still more; the law becomes more complex or irrational or both; and enforcement will run into the same litigious opposition that has haunted the 1970’s reforms. For example. Professor Briffault argues that his rule, motivated by single-candidate committees, would have to cover bogus multi-candidate committees that tried covering their tracks by tossing a little money at a few additional candidates. Briffault suggests drawing the line at a number of candidates, 2-4, or at the level of their expenditures for the benefit of the one candidate they truly favor, perhaps setting it at 50% of the committee’s total spending or “some other very large fraction.” Now the single candidate rule has become a multicandidate rule, and one shudders to think of the course of the FEC rulemaking and the inevitable litigation to follow.

Another suggestion Briffault makes is that “coordination” be established if the candidate expresses approval of the committee’s efforts, or just “signals support for the organization’s campaign work.” There is unhappy experience with the regulatory challenge that proposals of this nature present—to set aside for a moment the constitutional challenge. The FEC’s parsing of the various ways funds could be “solicited” should not give cause for optimism that the agency will establish a sustainable definition of “approve,” “endorse” or “signal.” See generally 11 C.F.R. 300.2(m). Assume the candidate is circumspect and avoids comment unless specifically asked about a criticism the independent committee has directed against an opponent in a televised ad. Is the comment “no comment” as a matter of law, or the candidate and committee face the legal consequences; or will the FEC be compelled to devise an exception for responses to press-initiated inquiries?

The attention paid in this proposal to the role of former staff also runs into trouble within the analysis that Professor Briffault offers. A candidate and former employees now at the helm of an independent committee may have no have no need of direct contact to arrive at shared understanding of the most effective messages. But as Professor Briffault acknowledges, the same route to like-mindedness can be easily traveled in this day and age by supporters having no prior relationship:

Candidates and committees don’t have to talk to each other; they can communicate through the press. A candidate’s committee can publicize campaign messages, themes, and strategies, and reach audiences the candidate’s campaign would like to target, without sitting down with representatives of a supportive committee. This might have been a bit more cumbersome in 1999…but surely today, with candidates, campaigns, parties, and political committees all maintaining websites and Facebook pages, and campaign operatives posting their latest thoughts to their Twitter accounts, direct contacts between campaigns and outside groups are unnecessary: Why do they have to meet when they can tweet?

And why do they have to have known each other when they can read websites and tweets? Former staff status may be additional comfort to the candidate—not necessarily, but sometimes—but on the essential question of independent activity consistent with the campaign’s goals, it is not obvious, beyond a sensitivity to appearances, why the former employee’s work should be such a focus of regulatory energy. A well run independent committee operating well clear of the hurdles erected by this proposal can expect just as much as any other to “be viewed by the candidate or candidates aided as providing integral support to their campaigns even in the absence of express current interaction.”

Maybe the issue is indeed one of appearances, but appearances, the “look” of things, can’t carry the work of revising the standard of constitutionally protected “independence.” Professor Briffault sets as his goal the higher ambition of “maintain[ing] the integrity of the contribution/expenditure distinction that has been a foundational part of our campaign finance law for nearly four decades.” His proposal certainly helps expose the futility of the distinction but is very unlikely to save it.

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