In a rare show of unanimity, FEC commissioners voted 6–0 for an advisory opinion reaffirming that federal law prevents elected officials and political candidates from soliciting unlimited funds for independent expenditure PACs (aka “Super PACs”).
As the Brennan Center explained in a comment letter to the FEC, the Super PAC proposal (which was first put forth by the Republican Super PAC and its general counsel James Bopp, Jr.) would have violated a federal ban on solicitation of unlimited money by candidates and certain officials. This solicitation ban was put into place by Congress as part of its crackdown on so-called “soft money” abuses. Before this reform, wealthy donors who had maxed out their contributions to a Senator or Congressman could buy more access and influence by contributing unlimited sums to outside groups at an official’s behest. The Supreme Court has upheld the solicitation rule, and the contribution limits it is designed to protect, as a vital bulwark against government corruption.
Moreover, this decision struck an important blow for the rule of law. The Republican and Democratic commissioners together rejected the latest ploy by reform opponent Jim Bopp to stretch campaign finance law past the breaking point. By proposing that candidates solicit unlimited funds for his Republican Super PAC, Bopp thumbed his nose at statutory requirements that have been upheld by the Supreme Court. Even some of Bopp’s allies agreed that purposefully violating federal law goes a step too far.
The Super PAC decision remains a mixed bag. The Commissioners also agreed that candidates, legislators and other covered officials may solicit limited donations for independent expenditure groups. In other words, federal officials can ask donors to give a Super PAC up to $5,000, the federal limit that applies to all other PACs. But does anyone really think a disclaimer in a letter from Harry Reid or Nancy Pelosi means anything to a potential Super PAC donor? A candidate’s solicitation gives donors a green light to support a favored Super PAC. Those donors are likely to take advantage of the Super PAC’s ability to accept unlimited contributions—and may believe the candidate expects them to do so—regardless of any formal disclaimers.
In other words, this whole arrangement undermines the pretense that a Super PAC is wholly independent from the candidates it supports—even though that independence is the legal reason such groups can accept unlimited contributions, including corporate and union money, in the first place.
We applaud the FEC for interpreting the law correctly. But this result just shows how inadequate the law is after Citizens United. In that controversial and game-changing decision, the Court found that so-called “independent expenditures,” unlike direct contributions or coordinated expenditures, create absolutely no risk of corruption. That bright-line distinction may make sense to five Justices, but it doesn’t hold up in the real world. Harry Reid is likely to be just as grateful for a direct campaign contribution as when a donor responds to his Super PAC solicitation—whether or not he has final approval over the Super PAC’s television ads.
Today’s FEC ruling remains an important victory. It shows that the Commission can reject formalistic arguments in favor of a bipartisan approach that acknowledges what coordination really means to candidates and donors. But it leaves us with a regulatory approach that remains unsatisfying to anyone who cares about sensible campaign finance laws. The only way out of the current morass is to recognize how money and politics work in the real world—and to push back against the mistaken assumptions of current Supreme Court doctrine.
Oh, and in other news, Stephen Colbert got his Super PAC — and invented the first funny knock knock joke about campaign finance law.