In its ruling in the Citizens United case of 2010, the Supreme Court decided that organizations that are wholly independent of candidates could spend unlimited sums of money to influence elections because, in the words of Justice Anthony Kennedy, “independent expenditures do not lead to, or create the appearance of, quid pro quo corruption.”
Shortly thereafter, entities known as super PACs began to enter American politics. With the ability to both raise and spend as much money as they like, they have become a potent force in elections from the local to the presidential level. Yet in order to operate legally, super PACs are to remain independent of the candidates they support, and to be independent, they are not allowed – in theory – to coordinate with candidates or their campaigns.
Yet in practice, some coordination has been permitted since the very beginning, and as the years have passed and loopholes have been created, super PACs and candidates have found creative ways to coordinate their efforts while following the letter of the law. On activities ranging from attending events to fundraising to sharing content and harmonizing strategy, super PACs and candidates are – on the whole – allowed more coordination than they were six years ago.
A year after the Citizens United decision, the Federal Election Commission (FEC) was asked to determine whether candidates could attend an event – particularly, a fundraiser – hosted by a supportive super PAC. Citing regulations it adopted the year before, the FEC issued an advisory opinion stating that candidates "may attend, speak at, or be featured guests" at fundraising events.
The opinion noted that candidates can only solicit up to $5,000 (per individual) for donation to a super PAC, but subsequent opinions have made it easier for candidates and their campaigns to coordinate fundraising.
In 2015, the FEC determined that there is no minimum number of attendants required to constitute an "event," so long as there are written invitations, a program, and a disclaimer that the candidate in attendance is not requesting donations in excess of the established limit. Thus, hypothetically, an event could involve as few as three attendants: the candidate, a super PAC representative, and a donor.
The FEC also determined, citing prior opinions, that an "agent" of the candidate – including a campaign aide or consultant – can solicit large donations to a super PAC so long as the agent makes clear that he or she is not doing so at the behest of the candidate.
Leaked e-mails from the account of John Podesta, Hillary Clinton's campaign chairman, show the Clinton campaign coordinating fundraising in precisely this manner. A leaked memo sent just days after Clinton announced her candidacy in April 2015 shows attorneys coaching campaign staffers how to lawfully steer donations to Priorities USA Action Fund, a pro-Clinton super PAC.
As an illustration of how to coordinate such fundraising, the memo suggests a Clinton campaign staffer telling a Priorities representative, "Donor A works in financial services and has been a long-time contributor. I think she’d be willing to do six figures for Priorities.” Not recommended, the memo states, is to make a direct request, such as,"I want you to call Donor A and ask for $250,000.”
In early 2015, some candidates circumvented these rules altogether by delaying their candidacy. By not being declared candidates, the rules governing coordination between super PACs and candidates did not apply.
Jeb Bush, for example, helped raise more than $100 million for Right to Rise, a super PAC that supported him after he became an official candidate in June 2015. For months, Bush said he was exploring the possibility of running for president and decided against telling the FEC that he was "testing the waters," a declaration that would have limited his fundraising abilities. As a candidate merely contemplating the possibility of running, Bush was able to request donations of unlimited sums to Right to Rise.
Bush was not the only candidate who engaged in this kind of pre-candidacy coordination. In early 2015, observers noted that other eventual candidates were engaging in candidate-like activity yet postponing a formal declaration in order to avoid compliance with rules governing the relationship between candidates and super PACs.
In late 2015, the FEC clarified under what conditions an individual is officially "testing the waters" and under what conditions an individual is a formal candidate. One becomes a candidate, the FEC decided, once he or she spends more than $5,000 and makes a private determination to run. It also determined that an individual who becomes a bona fide candidate cannot use funds raised from large donations made to a super PAC to cover his or her exploratory activities.
As Matea Gold wrote for the Washington Post in December 2015, these FEC rules "could make it harder for prospective candidates to lay substantial groundwork for a campaign while maintaining publicly that he or she is still undecided."
Yet once they become candidates, there are still ways that their campaigns can lawfully coordinate with super PACs.
When it comes to sharing content, for instance, campaigns can publicly upload materials such as "b-roll" footage of a candidate onto the Internet so that a supportive super PAC can find and use that footage to create political advertisements. During the Republican primary season, the campaigns of several candidates – including Ted Cruz, Marco Rubio, and Carly Fiorina – uploaded "b-roll" footage online for this purpose.
Campaigns can also communicate with super PACs through the media – so long as their messages are accessible to the public. During the primary season, for example, members of Rubio's campaign staff tweeted links to a fact-checking site maintained by the campaign, signaling to friendly super PACs ideas and talking points for political ads.
Leaked e-mails from the account of John Podesta show the Clinton campaign engaging in similar activities. One e-mail shows the campaign deliberating whether to "send public smoke signals" to Priorities through an online posting, encouraging it to release ads that would save the campaign $2 million to $4 million.
Coordination through public messages can work the other way as well. This year, super PACs have experimented with disclosing their plans through press releases, memos, and public conference calls so as to inform campaigns of their canvassing and advertising activities.
The pro-Clinton super PAC Correct the Record has justified its coordination with the campaign on similar grounds. Citing an FEC regulation from 2006, it has regularly claimed that it can coordinate with the campaign if its material – including defenses of the candidate and opposition research – is posted on the Internet by uncompensated individuals. When pressed, the super PAC even claimed that such coordination is permitted if the online content is created by a paid staffer.
Yet this October, the Campaign Legal Center filed a complaint with the FEC disagreeing with that conclusion. It states that coordination is not automatically permitted just because the super PAC's content is posted online. "Even though the blog itself would fall under the 'communications over the Internet' exception, the political committee’s underlying payments to the blogger are still considered 'expenditures'—which, if coordinated with a candidate, would constitute in-kind contributions."
The complaint also notes that a majority of the super PAC's expenditures are not for online activity but for other activities that, if coordinated with the campaign and paid for out of its non-contribution account, would constitute illegal in-kind contributions.
The Campaign Legal Center has also filed complaints against the Trump campaign and two super PACs, Rebuilding America Now and Make America Number 1.
Federal rules state that there must be a 120-day "cooling off" period before a campaign staffer joins a super PAC or before a super PAC staffer joins a campaign. But within this period, two high-level advisers to Trump – Laurance Gay and Ken McKay – left the Trump campaign and joined Rebuilding America Now.
Gay and McKay claim that the waiting period does not apply to them because they did not possess any "strategic information" and because they were not paid by the Trump campaign and hence were not "employees" (the term used in the regulations). The Campaign Legal Center's complaint, however, notes that in the federal code, the term "employee" can refer to someone who does not receive monetary compensation.
In its FEC complaint, the Campaign Legal Center also notes that Trump's campaign manager and deputy campaign manager are former presidents of the super PAC Make America Number 1 and were brought on board within 120 days of leaving the organization. The complaint notes that Kellyanne Conway, Trump's campaign manager, has not yet been paid by the campaign but that her polling firm, The Polling Company, has received payments from the Trump campaign and Make American Number 1., a voter data firm heavily funded by Robert Mercer – a major contributor to Make America Number 1 and whose daughter, Rebekah Mercer, chairs the super PAC. The complaint alleges that this arrangement " afoul of the 'common vendor' rule designed to preserve the independence of campaigns and political committees."
With the FEC so often hamstrung by partisan gridlock, it is uncertain whether the body will investigate or sanction the coordination alleged by the Campaign Legal Center. It also remains to be seen whether the FEC will continue to expand the loopholes that permit coordination between campaigns and super PACs or whether, with the election of Clinton or Trump – both of whom have criticized the Citizens United decision – the next president will sign a bill rendering such coordination unconstitutional.