Federal Politics

Published — January 13, 2012 Updated — May 19, 2014 at 12:19 pm ET

Rules against coordination between super PACs, candidates, tough to enforce

Republican presidential candidate, former Massachusetts Gov. Mitt Romney, walks towards adviser Eric Fehrnstrom, left, as they stepped off his campaign charter plane in Columbia, S.C., Wednesday, Jan. 11, 2012, the day after winning the New Hampshire primary election. (AP Photo/Charles Dharapak)

Punishment for coordination between candidates and outside groups is rare

Introduction

Presidential front-runner Mitt Romney knows that he can’t talk to the people who run the notorious “super PAC” that may have won the Iowa caucuses for him.

“It’s illegal, as you probably know. I’m not allowed to communicate with a super PAC in any way, shape or form,” he said in December on MSNBC’s Morning Joe show. “My goodness, if we coordinate in any way whatsoever, we go to the Big House.”

Well, probably not. Criminal prosecution is theoretically possible, but highly unlikely — and even civil sanctions are rare, according to a review of Federal Election Commission actions.

Since 1999, the FEC has conducted a total of three investigations into alleged coordination between a candidate committee and an individual or organization making “independent expenditures.” Two of those probes resulted in fines totaling $26,000, according to a Center for Public Integrity investigation.

The Citizens United Supreme Court decision and a lower-court ruling in 2010 allowed corporations, individuals and labor unions to make unlimited contributions to independent organizations that use the money to support or defeat a candidate. The ruling led to the creation of “super PACs.”

There is no established fine for offenders. It is up to the six-member FEC — split evenly between Republicans and Democrats — to decide on punishment.

“They have the final say in how much a committee will be paying for a civil penalty,” said Christian Hilland, an FEC spokesman.

Small fines and infrequent investigations stem from the “exceedingly difficult” nature of investigating coordinating activities claims, said former FEC commissioner Karl Sandstrom.

“It requires evidence with respect to communications and conversations that took place, and usually those are not documented,” Sandstrom said.

The regulations governing independent expenditures are so specific that unless the commissioners have a witness to one of those consultations, the FEC is unlikely to gather enough evidence to open an investigation.

An expenditure is not independent if the candidate or his staff is “materially involved in decisions regarding the communications” or “shares financial responsibility” for it, according to FEC rules.

In the past, the rules banning coordination didn’t get much attention.

Prior to the super PAC era, only individuals, party committees, traditional PACs and nonprofits that refused corporate and labor union donations made independent expenditures. Because super PACs can raise such extraordinary sums of money, concerns about coordination have grown.

Despite the weak enforcement and low fines, the coordination rule faced a challenge in October.

Conservative super PAC American Crossroads asked the FEC to allow candidates to appear in super PAC ads. The PAC argued that while the ads are “fully coordinated” with candidates, they should not count as “coordinated communications” in the campaign finance sense.

FEC commissioners deadlocked 3-3, meaning the rule remains unchanged.

The super PAC that Romney took such care to distance himself from is called “Restore Our Future,” which spent more than $4.1 million on advertising and direct mail attacking former House Speaker Newt Gingrich, primarily in Iowa.

The ads were blamed — or credited, depending on your perspective — for Gingrich’s plummet in the polls and a distant fourth-place finish in the Iowa caucuses. Romney stayed above the fray while the super PAC did the dirty work.

The PAC was founded and run by operatives from Romney’s 2008 presidential campaign, including Charles Spies, former chief financial officer, Carl Forti, former political director, and Larry McCarthy, a former media team member.

Billionaire casino mogul Sheldon Adelson has answered by writing a $5 million check to “Winning Our Future,” a Gingrich-supporting super PAC. The money is expected to fund a $3.4 million ad campaign in South Carolina criticizing Romney’s tenure with private equity firm Bain Capital.

The most recent FEC investigation regarding coordination was settled in May 2009 and involved the election committee of former Rep. Joe Schwarz, R-Mich., and the Republican Main Street Partnership PAC.

The FEC uncovered emails spanning six months in 2006 between members of the PAC and the Schwarz campaign. One email revealed Schwarz campaign director Matt Marsden had contacted the PAC’s treasurer with a suggestion for a radio ad on behalf of Schwarz. One week later, two radio stations ran ads following the theme the Schwarz director suggested. Other emails revealed Schwarz staffers recommended which radio stations the PAC should target.

The complaint was filed by Club for Growth, a conservative PAC backing Schwarz’s main challenger. Schwarz vehemently denied his staff broke any laws and spent around $50,000 and three years fighting the charge before agreeing to settle, according to The Jackson (Michigan) Citizen Patriot.

Each group was fined $2,500.

One of the FEC’s most high-profile investigations resulted in no fines.

The Republican National Committee and the 2004 Bush campaign filed a complaint against liberal PAC MoveOn.org and its affiliates for coordination with the John Kerry campaign. The investigation did not turn up enough evidence to fine the group even with Kerry’s hiring of Zach Exley, a MoveOn.org project director.

The FEC investigates illegal coordination claims based on complaints, but occasionally another government agency or the FEC will recommend an investigation, Hilland said.

Once a complaint is filed, commissioners open an investigation and decide whether or not penalties are warranted and, if so, how much the candidate or outside committee should be fined.

Top independent expenditures through Monday by super PACs supporting presidential candidates include Restore Our Future ($7.8 million); Gingrich supporter “Winning Our Future” ($4.3 million) and “Strong America Now” ($125,000); Texas Gov. Rick Perry supporter “Make Us Great Again” ($4.0 million); Ron Paul supporter “Endorse Liberty” ($2.9 million); former Utah Gov. Jon Huntsman supporter “Our Destiny PAC” ($2.5 million); Rick Santorum supporter “Red, White and Blue Fund” ($1.3 million) and “Leaders for Families” ($218,000); and President Barack Obama supporter “Priorities USA Action” ($321,000), according to an analysis of FEC data.

An FEC complaint is confidential until the case is closed, so it is unknown if any coordination complaints have been filed unless the filer makes it public.

Election watchdogs Democracy 21 and the Campaign Legal Center filed a related complaint against Rick Perry and the Make Us Great Again PAC, alleging that Perry used several video clips, free of charge, in his own ad that Make Us Great Again produced. This constitutes an illegal in-kind contribution, the groups say.

The complaint does not explicitly reference the coordination rule, but Campaign Legal Center attorney Paul Ryan said campaign contribution limits and coordination rules are directly related.

“The whole purpose of the coordination rules is to prevent a candidate from evading campaign contribution rules,” Ryan said. “Without them, the contribution rules would be pretty meaningless.”

This story has been updated.

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SOUTH JERSEYTed SiroisMark SullivanTom LarkinAnonymous Recent comment authors
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Mark Sullivan
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Mark Sullivan

Trump needs to conduct these activities because the entire MSM media, excluding Fox, is campaigning against him 24/7/365.

Didn’t Monica’s boyfriend’s wife and various criminal enterprises outspend Trump by almost 2-1?

CapitalistRoader
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CapitalistRoader

Why wouldn’t he get an early start on fund raising? Hillary outspent him two-to-one in 2016. The Dem’s are the party of big money. The President knows this and is attempting to get a jump on it. Of course the Dem candidate will outspend him in 2020 so it’s only rational that he starts fund raising now.

George Young
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George Young

Oh brother. We just 8 years of the Campaigner – in – Chief. Where was this journalistic rectal thermometer then. Just another article about 2000 words too long that merely takes another slap at Trump for something he far from initiated.

j stevenson
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j stevenson

The big difference between Trump and all the rest is his refusing to accept funds from lobbyists, so they don’t have the White House access they are used to. These are the donors who buy the presidency and are as pixxed off that he won the election as are the media and the Dems. Lobbyists have never been shut out of the WH and Trump has told them he is not for sale.

jan v
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jan v

all the lobbyists are running all our government agencies and all the career civil servants who know how to run the country have been fired. YOU think this is a good thing ? what a crock…

thomas alessi
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thomas alessi

I am for Trump

Martin Shellabarger
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J. Stevenson, what are you drinking? Trump has more lobbyists in his administration than probably any other president. Trump is totally “for sale”, and the corporations know it. Grow a brain!

Anonymous
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Anonymous

Trump needs to be impeached and tossed in prison. Then have the key thrown away so he will never be free. Then he can see how it feels not to have freedom.

Mark Sullivan
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Mark Sullivan

Thank you for the usual insightful leftist low IQ Snowflake response.

barney
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hes not imprisoning them hes sending them back to their country chill tf out

SOUTH JERSEY
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SOUTH JERSEY

WHY DONT YOU HAVE FREEDOM?

Tom Larkin
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Tom Larkin

First, something positive. I was happy to learn of empirical information in article. BUT, the article was so slanted against President Trump as to be deemed fake news (“Perhaps Trump just lied.” (Two different issues)). The article mentions that President Trump raised over $67 million, but ended 2018 with $19 million. President Trump spent over $40 million 2016 and 2017. President Trump conducted 57 political rallies. The article notes the hats and T-shirts sold, but NEVER MENTIONS THE INCREASE IN THE NUMBER OF REPUBLICAN SENATORS during a mid-term election that lost the House and the number of political rallies in… Read more »

Ted Sirois
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Ted Sirois

At least Trump is getting donations from willing donors. Fresh from his first election, Obama used billions of our children’s tax dollars to save thousands of union jobs in the car industry and bailed out the banks and many Wall Street businesses. This secured his source of reelection funds for his reelection four years later.

South Jersey
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South Jersey

TRUMP 2020; IS AN AMAZINGLY SMART MAN! VERY ORIGINAL & CREATIVE. I AM HAPPY TO HAVE HIS AS POTUS.

SOUTH JERSEY
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SOUTH JERSEY

THIS ARTICLE WAS OBVIOUSLY WRITTEN BY, A TRUMP-HATE-GROUP. THAT FEELS; IT IS NOT NORMAL TO BE SUCCESSFUL WITH YOUR OWN BRAND NAME. WHEN, IF FACT, IT IS NORMAL! >>>>> THIS IS >>> FAKE NEWS!!! <<<< ie: A PACK-OF-LIES; SPUN INTO; DEFAMATION OF CHARACTER. FOR A SINISTER-AGENDA OF; FASCIST DEMOCRATIC SOCIALIST, COUP D'ETAT

David
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David

Are you on some kind of drugs? Writing in caps makes me think that you are grumpy old fart or a uneducated hillbilly.