“Not Authorized”

November 29, 2015
posted by Bob Bauer

Right now the basic complaint about Super PACs is that they can enlist the and endorsement support of their favored candidates, as in fundraising, and still claim they are “independent” and spend without limit.  But the Supreme Court—not the FEC, not wily campaign finance lawyers—is the reason why this is possible.  In Buckley, the Court tied “independence” to the coordination of specific expenditures with candidates. Without this coordination, the Buckley Court determined, the candidate runs the risk that the expenditure could be unhelpful or counterproductive and is not fairly charged with a “contribution” subject to limits.

No candidate request, control or involvement means, therefore, no spending limits.  The independent committee’s public advertising then must contain a specific statement that the candidate did not “authorize” the communication. 11 C.F.R. §110.11(b)(3). This may be true, but the voter checking the committee’s formal registration with the FEC will find that the committee declares itself, and not just a specific expenditure, to be unauthorized.

In a technical sense, this is true: the committee is “unauthorized” because it is an independent committee whose expenditures are made without the candidate’s direction or involvement.  But the absence of control over or involvement in particular independent committee expenditures does not mean the absence of any contact with the committee.  The candidates can applaud an independent committee’s formation and operation for their benefit, and they may appear at the committee’s events as guests or featured speakers and assist with its fundraising.

Voters may well be perplexed.

For them, the issue may be one of political accountability, not just, or maybe at all, the application of contribution limits. “Authorization” conveys one meaning for lawyers and regulators, and perhaps another for the voting public.  The former “legal” meaning is important for the enforcement of the contribution limits, and the latter “political” meaning bears on whether the committee has the candidate’s backing and active support.  At this time, a candidate can say a committee is independent, intimating that he has nothing to do with it, while standing firmly behind it, and well within legal requirements.

This is another example of the confusion being generated by federal campaign finance law in its current state.

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