What are the rules against candidates coordinating with super PACs?

The FEC has a "three-prong test" to determine whether an expenditure for a campaign ad was coordinated with a candidate, but essentially it comes down to whether the candidate does any one of five things:

  • • Requested, suggested, or assented to the ad
  • • Was materially involved in the ad's creation, production, or distribution
  • • Had substantial discussion with the PAC before the ad was created, produced, or distributed
  • • Employed the same vendor the PAC employed to create, produce, or distribute the ad
  • • Employed a person who created, produced, or distributed the ad for the PAC

The FEC test lays down clear lines between legal and illegal conduct, which is what regulations are supposed to do.17 The problem is that candidates and PACs can work together without doing any of those things. That means coordination cannot be prevented and that it is next to impossible to enforce the rules against it.

This dilemma appeared soon after Buckley, in response to the burst of independent expenditures by conservative groups in 1980. After that year's election, reformers asked the FEC to narrow its definition of independence. As members of that 1944 Senate committee could have told them, though, "independent" was an elastic term.

Political scientist Larry J. Sabato explained in his 1984 book on PACs that direct consultation was not necessary to coordinate expenditures with candidate campaigns: "The network of friends and associates among campaigns and PACs is so large and so informed that anyone seriously desiring to know a candidate's campaign needs or plans has very little trouble doing so."18

By 2001, the Supreme Court itself acknowledged that supposedly independent expenditures were made with a "wink or nod" from the candidate they supported.19 But it took the rise of the single-candidate super PAC in 2012 to show how close coordination with candidates could get and still not count as coordination under the law.

 
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