Toeing the Line: FEC, DOJ, and Coordination Between Super PACs and Candidates

By Staff Writer:

Five years ago, the Supreme Court’s decisions in Citizens United v. FEC and Speechnow v. FEC led to the creation of Super PACs, or independent expenditure-only political committees. Super PACs differ from candidate or political party committees in that they cannot contribute directly to candidates; they may only engage in independent spending on advertising, voter outreach, and the like. Furthermore, although Super PACs may support a particular candidacy, they are strictly prohibited from “coordinating” with candidate or political party committees.

The fact that Super PACs are permitted to support a particular candidate for office, but may not “coordinate” directly with that candidate’s campaign, has created a rather blurry line between these two types of political committees. For example, candidates and parties regularly post “b-roll” footage—usually flattering shots and clips of a candidate speaking and interacting with voters—on YouTube or on their own websites, and this footage is routinely used by Super PACs in their advertisements. Because b-roll footage is available to any member of the public who comes upon it (although it is usually buried deep on a candidate’s website), the fact that Super PACs use such footage is presently not considered “coordination.” However, observers have argued that the posting of b-roll represents a tacit indication by candidates to Super PACs of what they’d like to see on the air. The FEC, unsurprisingly, is deadlocked on partisan lines on whether b-roll dissemination violates federal election laws, so this particular issue remains unresolved.

Additionally, former campaign and personal staffers regularly make the leap from candidate committees to Super PACs. It can be surmised that these individuals have a reasonably accurate idea of what the candidate would want them to do, even if they haven’t received explicit instructions. This, too, is not considered coordination by the FEC.

Therefore, over the past five years, Super PACs have toed the coordination line without any real sense of where the point of no return was actually located. The Department of Justice (DOJ) finally drew the line in February of 2015, when it reached a plea deal with a former Congressional campaign worker who simultaneously coordinated with a Super PAC working on behalf of his employer. Tyler Harber, former campaign manager to Chris Perkins (a Republican candidate who unsuccessfully challenged Democratic incumbent Rep. Gerry Connolly in Virginia’s eleventh Congressional district) pleaded guilty to one count of coordinated federal election contributions, and one count of making false statements to the FBI.

Harber’s plea agreement states that after he solicited the maximum contribution to Perkins’ campaign from a wealthy donor, he persuaded the donor to give $300,000 to a Super PAC that advocated on behalf of Perkins. Furthermore—and more damningly—Harber was personally paid a percentage of the Super PAC’s expenditures in kickbacks.

DOJ’s decision to prosecute Harber—as well as its relatively swift resolution of this case—serves as an indication to candidate committees and Super PACs alike that although “coordination” is still loosely defined, there is a line that political operatives cannot cross without potentially drawing an indictment. To the casual observer of campaign finance law, the receipt of kickbacks probably seems to be a self-evident example of coordination, but in an age of consistent FEC inaction and failure to adequately define the scope of the law, DOJ’s plea deal with Harber is all we have so far.

Its a telling anecdote, and it testifies to his insecurities, his click here to see vanity and childishness
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