Super PACs and the Confusion of Regulatory Objectives

February 21, 2014
posted by Bob Bauer

In the discussion of Super PACs,  seemingly different concerns tend to intermingle or become fused together, creating confusion.  Most obvious is the continuing disagreement about whether candidate support for an independent committee, particularly fundraising, results in “coordination.”  Some argue—some propose an amendment to the law to provide—that a candidate’s public endorsement of a committee, including but not limited to appeals for funds, is coordination.  Another view distinguishes among Super PACs and would subject single-candidate committees to stricter coordination than others.

The issue might be easier to follow if it were made clear that there are two regulatory objectives, close in nature but not the same, running through the arguments about the impact of candidate fundraising for an independent committee. One  goal is to keep officeholders and candidates from soliciting “soft money”—money in unlimited sums and without restriction in source—and, in consequence, placed in a position rife with the potential for corruption.  The other is to determine whether a Super PAC, as a result of coordination with a candidate, is limited in its spending.  The “coordinated” spending is, of course, a contribution and must comply with dollar limits.  Not so the spending that remains an “independent expenditure.”

The similarity of the objectives is obvious.  If an expenditure turns out to have been coordinated, and therefore a contribution, the candidate may have received a benefit in excess of the dollar limits established to protect against corruption.  So we have the threat of such corruption here, just as in the case of the candidate who solicits funds  directly for a Super PAC. But the corruption, actual or in appearance, materializes in different forms: in one case, through the independent committee as contributor, and in the other, through  the donor solicited for the contribution to the committee.

The consequences of regulation in the two cases are still more different. Where the candidate has solicited the money directly from the donor, one-on-one,  the candidate and the donor are joined together, sole parties to what Brad Smith calls a potentially corrupting  “opportunity for bargaining.”  The independent committee then receives the money, but only then, and it can proceed independently from that point in designing, producing and choosing the timing for a communication on behalf of the candidate.  If the prior solicitation is deemed an act of coordination, then the committee becomes liable after the fact for an illegal contribution and is unable to claim independence from the candidate in making any subsequent expenditure.

A champion of strict coordination rules might then reply: well, even if the candidate has not specifically asked for the money, she can attend and speak at a PAC event as an honored guest, and the attendees will give handsome sums just as if directly solicited for them.  The committee is then, as the host of the event, present at the contact between the candidate and donors.  But the candidate could have this same effect on the donors by simply publicly expressing approval of the PAC—and at this point, there is no discernible difference between fundraising and just plain political speech.  This is why some proposals go as far as treating such speech, wherever it occurs, as an act of “coordination.”

What adds to the mysteries of the recent debate is that by law, candidates and officeholders cannot raise soft money for a Super PAC. They can appear at PAC events, speak, and be present as honored guests—but they cannot then, or at any time, ask for more than $5000 for a committee in any one year. Assume a candidate who only solicits from a donor, as the law requires, this limited amount, and it seems even more peculiar that the “independence” of a committee should, for a contribution in that amount, be put at risk.

The debate over Super PACs would do well to separate the solicitation from the coordination questions.  It is reasonable to object to the solicitation by officeholders and candidates of large sums of money: the law as written is supposed to prohibit it.  Far less defensible is wrapping the concern with the solicitation into the coordination standards, either by denying constitutionally protected independence to a committee having no part in “soft money” fundraising, or by erasing the difference between fundraising and publicly stated approval of the independent committee.

Under current law, coordination cannot rest on contacts between candidates and donors; it results from contacts between candidates and the committee in the making of specific expenditures. The different issues presented by these contacts, and particularly fundraising, are routinely  and mistakenly assumed to be the same.

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