Rules of the Game: Super PACs Multiply, Head to Hill

Some Worry Popularity Of Organizations Might Spark Soft Money Woes

Posted October 17, 2011 at 6:27pm

As super PACs proliferate, the number devoted to either backing or bashing a specific Member of Congress or a small group of Members has suddenly spiked.

There’s the new Congressional Leadership Fund, which will boost House GOP hopefuls. There’s the new super political action committee being launched by a former aide to Rep. Eric Cantor (R-Va.) to promote the Majority Leader’s Young Guns message and movement. There’s the new Strong Utah PAC to defend Sen. Orrin Hatch (R-Utah.) There’s even a new super PAC, Renew Delaware, to attack Sen. Tom Carper (D-Del.).

It’s easy to see where this is going. Having hit the scene last year mostly as vehicles to shadow the national political parties and the top-tier presidential candidates, super PACs are moving to Capitol Hill. It’s only a matter of time before super PACs become, like the personal campaign committees known as leadership PACs, de rigueur for Members of the House and Senate.

It’s also clear that Members of Congress will play a substantial role in raising money for the new super PACs, which are an outgrowth of the Supreme Court’s landmark ruling last year to free up corporate and union campaign expenditures. Such PACs may collect big soft money donations that are verboten for lawmakers — as long as they operate independently from candidates and parties.

Having signaled as recently as June that he was not raising money for super PACs, Speaker John Boehner (R-Ohio) will now appear as a featured guest at a Nov. 2 Capitol Hill Club shindig to inaugurate the Congressional Leadership Fund. He’ll be joined by Cantor and several other members of the House GOP leadership.

“We’re pretty honored that we’ve got the House Republican leadership standing shoulder to shoulder and helping get this organization started by serving as special guests at our inaugural fundraiser,” said Congressional Leadership Fund President Brian Walsh, who is also president of the conservative nonprofit the American Action Network.

Senate Majority Leader Harry Reid (D-Nev.) and House Minority Leader Nancy Pelosi (D-Calif.) are already soliciting money for a couple of super PACs helping Senate and House candidates — the Majority PAC and the House Majority PAC.

In response to a June advisory opinion request, the Federal Election Commission spelled out that federal officials may not raise unrestricted soft money for super PACs. But the FEC said lawmakers may ask super PAC donors for hard money contributions — that is, checks that don’t exceed the federal $5,000 PAC contribution limit and that don’t come directly from corporations or unions. The FEC also cleared lawmakers to attend and speak at super PAC fundraisers.

James Bopp Jr., the conservative election lawyer who had asked the FEC’s advice, hailed the FEC opinion as a free speech victory. The ruling means that “candidates may send out e-mail letters praising and endorsing a super PAC in the most glowing terms and soliciting contributions to it, so long as it contains a disclaimer” stating that the request is for hard money only, Bopp said in a statement at the time.

That’s just what worries campaign finance reform advocates, who fret that super PACs will put lawmakers back in the business of raising the large, unrestricted contributions known as soft money. The McCain-Feingold law banned soft money fundraising in 2002. But lawmakers who speak at super PAC fundraising events may trigger soft money donations with a wink and a nod — even if they technically ask only for $5,000, reformers warn.

“It certainly looks like a way for big donors to dodge the contribution limits,” said Tara Malloy, associate counsel at the Campaign Legal Center. She pointed to a recent analysis by the center and two other watchdog groups that found that almost three-quarters of the donors to a super PAC that is friendly to GOP presidential hopeful Mitt Romney also gave the legal maximum to Romney’s campaign.

“These groups don’t seem to be independent in any real sense of the word,” Malloy said. Reform advocates have repeatedly challenged the FEC’s definition of coordination between PACs and campaigns as too narrow. Moreover, a second FEC advisory opinion request may pave the way for even cozier relationships between lawmakers and the super PACs that promote them.

The request was triggered by a series of ads that the Nebraska Democratic State Central Committee produced in conjunction with Sen. Ben Nelson (D-Neb.). Nebraska Republicans complain that the ads amount to illegal coordination between Nelson and the state Democrats.

The GOP-friendly super PAC American Crossroads has now asked the FEC whether it may run similar ads — effectively opening the way for lawmakers or candidates to work hand in hand with American Crossroads organizers to prepare political messages.

“What we’re asking the FEC is whether or not the type of coordination that took place between Nelson and the Democratic Party would be allowable and extended to third-party groups like American Crossroads,” said the group’s communications director, Jonathan Collegio. “If they determine that it is, then that is a new avenue of advocacy that we would pursue.”

If the FEC does clear the way for super PACs to create ads with their favorite candidates, the already-thin firewall that now separates Members of Congress from big money donors will further crumble. And super PACs will undoubtedly become even more popular on Capitol Hill.

“I think this is the wave of the future,” said former Cantor aide John Murray, whose new super PAC will promote conservative messages and candidates using Cantor’s Young Guns theme. “I think that my organization is on the cutting edge of how policy debates and issue debates will be driven in the future.”

Clarification: Oct. 18, 2011

An earlier version of the story indicated that Speaker John Boehner (R-Ohio) had said he would not raise money for super PACs.