The Super PAC Paradox

Posted March 9, 2012 at 4:44pm

When GOP presidential hopeful Rick Santorum gave his victory speech in Missouri after the primary there on Feb. 7, he shared the stage with a white-haired gentleman who stood practically at his elbow the entire time.

Investment fund manager Foster Friess probably did not strike audience members as someone special as he smiled merrily behind the former Pennsylvania Senator. But Friess is at the center of a growing controversy over unregulated money and alleged campaign finance violations in the 2012 campaign.

At issue is whether unrestricted super PACs are illegally working hand-in-hand with the candidates they support. Campaign finance watchdogs say the collusion is flagrant. Super PAC organizers argue just as loudly that they are meticulously following the rules.

Strangely, both are correct. That’s because Federal Election Commission rules define “improper coordination” so narrowly that political players would have to step far over the line to violate them. What’s striking about the wide-open spending in 2012 is not what’s illegal, say some election lawyers — it’s what’s now permitted.

“The real scandal in 2012 is how much potentially corrupting activity is perfectly legal,” said Paul Ryan, associate legal counsel at the nonpartisan Campaign Legal Center.

The coordination paradox stems in part from the Supreme Court’s explanation for why it threw out restrictions on unlimited corporate and union money in its landmark Citizens United v. FEC ruling. The high court lifted limits only on money doled out at arm’s length from candidates and parties. Because big money would be independent, the court rationalized, candidates wouldn’t risk corruption.

To campaign finance watchdogs — and arguably to average voters — the notion that high-dollar super PACs are independent from their candidates looks ridiculous on its face. Friess, for example, has given $1 million to a pro-Santorum super PAC even as he travels with and shares the stage with Santorum, reportedly advising the super PAC on the nature of its ads.

Other presidential super PACs have shared consultants with the candidates they support, used ad footage from the candidates’ campaigns and arranged for the candidates or their representatives to appear at fundraisers. The super PACs behind the GOP presidential hopefuls and President Barack Obama were set up by former aides to the candidates.

Obama’s recent announcement that he would dispatch campaign and even Cabinet officials to appear at fundraising events for Priorities USA Action, the super PAC supporting the president, has ramped up complaints. Campaign officials for former Massachusetts Gov. Mitt Romney quickly announced that they, too, would allow senior aides to headline fundraising events for the pro-Romney super PAC Restore Our Future.

“It’s illegal, as far as we’re concerned,” said Democracy 21 President Fred Wertheimer, who has asked the Department of Justice to investigate. Wertheimer has sent the DOJ and other agencies numerous complaint letters about presidential super PACs, including Priorities USA Action, Restore Our Future, the Red White and Blue Fund and Winning Our Future.

The Supreme Court has spelled out that independent expenditures must be “totally independent,” “wholly independent” and “made without any candidate’s approval (or wink or nod)” in rulings going back to Buckley vs. Valeo in 1976, Wertheimer said. But he said enforcement is the problem.

The FEC has struggled for a decade to write coordination regulations that would stand up in court. The 2002 Bipartisan Campaign Reform Act ordered the FEC to tighten its coordination rules, but the commission’s regulations were repeatedly
thrown out in court, and reform advocates remain dissatisfied. Political players would essentially have to explicitly discuss ads and strategy with their backers to meet the FEC’s current coordination definition, election lawyers say.

“The chief fundraisers travel with the candidates and appear onstage with the candidates but presumably don’t talk about the one thing the FEC regulation prohibits, which is the actual content of the ad and where it should be run,” election lawyer and former FEC Chairman Trevor Potter said at a recent Brookings Institution forum on the rise of super PACs.

Jan Baran, an election lawyer at Wiley Rein said if the rules weren’t clear and carefully tailored, they wouldn’t withstand constitutional challenge — especially in light of the Supreme Court’s Citizens United ruling.

“The definition of independence doesn’t require complete political ignorance or chastity,” said Baran, who advises super PACs, though none that back specific candidates. “You cannot restrict the rights of people to engage in political expression by making them completely disassociated from politics, candidates or the political process.”

That helps explain why super PAC organizers say they’re not tracking the frequent complaints against them. Super PAC officials may share vendors, fundraising events and a history with the candidate — but they say all of it is legal.

“The FEC allows me to meet with donors, Newt [Gingrich] to meet with donors,” said Becky Burkett, a longtime fundraiser for the former Speaker and president of Winning Our Future, the super PAC supporting the Georgian. “So it’s not a violation, nor is it coordination.”

Former White House aide Bill Burton, a senior strategist for Priorites USA Action, which reportedly hosted Obama political adviser David Plouffe at a West Coast fundraising event recently, sounded a similar note.

“I’m not going to respond to every letter and statement that groups put out,” he said. “But I will say that we scrupulously follow all the rules and are well-aware of the laws and are making sure that we operate well within them.”