How did Citizens United and SpeechNow make coordination between candidates and super PACs such a big problem?
They did that by changing the law about who could give how much to whom. Before the Bipartisan Campaign Reform Act (BCRA) there were two campaign finance systems: the one under FECA regulation and the parallel soft money system that was effectively unregulated. The FECA prohibited corporate and union contributions and imposed limits on contributions from individuals; soft money was mostly raised under state laws that did not have these restrictions.
But BCRA went a long way toward ending soft money by drawing a bright line between the two systems. Congress could do nothing about state laws, but it could prohibit federal candidates from raising nonfederal funds. So BCRA barred federal candidates from soliciting "any funds that are not subject to the limitations, prohibitions, and reporting requirements" of the FECA.13
Citizens United blurred that bright line by permitting independent expenditures to be financed by corporate and union money. And when SpeechNow struck down the $5,000 limit on individual contributions to PACs that made those expenditures, it blurred the Buckley distinction between contributions and expenditures. By ruling that contributions to independent spending PACs could not be limited, SpeechNow effectively redefined those contributions as being themselves a form of expenditures. There were now gray areas where there had once been clear distinctions.
The FECA still prohibited corporate and union money and imposed limits on individual contributions, but now there were exceptions. The old restrictions applied to candidates, parties, and traditional PACs, but not to the new super PACs. Super PACs had to meet the same FECA registration and reporting requirements as other political committees, but they were funded in the same way as the old non-FECA soft money committees. Funds that were not subject to the limitations and prohibitions of the FECA were nonetheless now in the FECA. And if those funds were now in the FECA, did that mean that federal candidates could now solicit them?
The FEC soon had to answer that question. In May 2011, conservative lawyer James Bopp Jr. formed the Republican Super PAC, which he said would raise funds in coordination with the candidates it supported. He said this would not violate the FECA ban against coordination because that ban applied only to a super PAC's expenditures, not to its fundraising. He was so sure his plan was legal that he did not even bother to request an advisory opinion from the FEC.14
Democrats were not so sure, and they did ask the agency for an advisory opinion. Majority PAC and House Majority PAC, super PACs formed to help Democrats win seats in Congress, asked the FEC whether the candidates they supported could solicit unlimited contributions to them and attend PAC fundraisers.
The FEC's answer essentially supported Bopp's position. It did say that candidates were still bound by pre-Citizens United laws about raising campaign funds. But it also said that candidates could attend super PAC fundraisers at which unlimited sums would be solicited from corporations and unions, as well as individuals; they could stay within the law as long as they personally solicited only individual contributions of $5,000 or less.15
What the FEC said in effect was that candidates could hit up rich donors and corporate executives for five- and six-figure contributions under the legal cover of soliciting only the first $5,000. Some reformers tried to portray the $5,000 limit as a victory, but Bopp knew better. He said the FEC "approved our goal," and called the $5,000 limit "a fairly meaningless and technical restriction."16