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Uncoordinated Coordination: Six Reasons Limits on Super PACs Are Barely Limits at All

The Supreme Court made it legal for corporations and unions to spend unlimited money on elections so long as they don't 'coordinate' with candidates. So why does everyone seem to be coordinating?

This post has been updated.

Ask any campaign-finance expert about Super PACs and you’ll likely keep hearing one word: “coordination.” That’s because Super PACs — the super-powered groups that can raise and spend unlimited amounts of money from anyone — have just one crucial restriction on their powers: By law, they’re not supposed to coordinate with candidates.

Think that sounds clear? Think again.

“The restrictions on interactions between candidates and Super PACs are far more modest than the public believes,” said Paul Ryan, a lawyer with Campaign Legal Center, a campaign-finance advocacy group.

So long as candidates and Super PACs don’t discuss the particulars of their election spending — such as exactly where or how long their election ads will run — they’re free to discuss strategy and candidates can even help fundraise. One result: A presidential candidate can ask supporters — even his own father — to give to a Super PAC without it being “coordinated.” Or a group could plan to produce a “fully coordinated” ad with a candidate that it argues is uncoordinated.

“Coordination limits are essentially a joke if you want to avoid them,” said Michael Franz, an associate professor of government at Bowdoin College.

At least one professional joke-teller agrees: Comedian Stephen Colbert recently seized on the issue, ridiculing how some groups seem to be cutting it laughably close with the law.

Fundamentally, coordination rules are no laughing matter. Just ask the Supreme Court, which ruled in Citizens Unitedthat as long as money is spent independently of candidates — that is, without coordination — corporate and union donations are legal because they “do not give rise to corruption.” With that important restriction, corporations and unions were given free rein to spend as much as they want on elections.  

The problem, says Ryan, is that the current coordination rules are so limited the Supreme Court was “either being disingenuous or naïve.”    

We’ve pulled together a list to explain what the fuss is all about — six examples of what common sense might suggest is coordination, while the rules suggest otherwise:

1)The rise of candidate-specific super PACs

While Super PACs began forming in the lead up to the 2010 midterm elections, the big fad so far this year has been the formation of Super PACs dedicated to specific candidates.

Obama, Romney, Perry, Cain, Huntsman, Bachmann — all the major candidates have at least one supporting them now. The groups are often set up by former aides, former campaign managers or close confidantes familiar with both the candidate’s messaging and talking points.

According to Democracy 21, a campaign-finance reform group, these close ties to the candidates make candidate-specific Super PACs illegal, offering a “false veneer of ‘independence.’” But so far, the Federal Election Commission -- the agency that enforces campaign finance law and regulation — hasn’t issued a single rule that specifically pertains to Super PACs, let alone these candidate-specific groups.

2)Cooperative fundraising, uncoordinated spending

Of course, some candidates now have more than one candidate-specific group — and they may trust certain groups with their messaging more than others. So what’s a candidate to do? Endorse one and help fundraise, of course.

In guidance handed down by the FEC in July, the commission allowed candidates to help fundraise for the supposedly independent groups, on the premise that it was, after all, only coordinated spending that was banned.

The FEC did place a few restrictions: Candidates still can’t solicit unlimited donations or corporate donations to the Super PACs, but they can ask for contributions within the traditional $5,000 contribution limits that apply to direct donations. Whether that limit is meaningful is up for debate — donors can still give as much as they want. 

Democrats — namely, Sen. Harry Reid and Rep. Nancy Pelosi — promptly embraced the ruling by raising money for a Democratic-leaning Super PAC.

Meanwhile, GOP presidential candidate Mitt Romney has given his blessing to one of the Super PACs specifically set up to support him. He’s even spoken at the independent group’s fundraising events.

3)Uncoordinated father and son

Former Utah Gov. Jon Huntsman may be low in the polls, but at least he’s got a pro-Huntsman super PAC on his side — and a billionaire father, Jon Huntsman Sr., who’s already provided funding for the Super PAC, Our Destiny.

According to the New York Times, the younger Huntsman’s aides and supporters “have placed increasing hope that Mr. Huntsman’s father would shovel enough money into Our Destiny” to sustain the ad campaign launched by the group last week — a sticky situation, seeing as the elder Huntsman, founder of Huntsman Chemicals, “has been unwilling to do so without being asked."

If Huntsman the candidate does ask, he should watch his wording: “Dad, will you support me by giving this Super PAC $5,000?” — followed by a wink, a nudge, and a follow-up conversation with a super PAC staffer — might be just enough non-coordination to get the millions that the Super PAC needs without raising hackles at the FEC.

And if that’s the case, it may only be Huntsman Jr.’s pride that gets in the way: The Times reports that he’s been reluctant to ask.

4) An uncoordinated marriage

This may not come as news to some people, but marriages can also be uncoordinated! Just ask Janie Waltz, treasurer of a super PAC called Heartland Empowered Action Fund. Waltz — the only official listed for the super PAC — registered with the FEC at the very end of 2010, not long after her husband, John Waltz, lost a Congressional bid.

But now John Waltz, a Democrat and veteran from Michigan, is a candidate yet again. He announced in August that he’s challenging Rep. Fred Upton, a Michigan Republican, for his seat in the House. His wife is still heading up the Super PAC. So far, the PAC doesn’t seem to have paid for much beyond upkeep for the group itself — fundraising expenses, office supplies, and payroll — and no one has raised a formal objection to the uncoordinated spousal setup. 

Update: Responding to our request for comment, Janie Waltz said that her group has not spent funds in the district where her husband is running for Congress, and that she is "in the process of winding down operations" in order to join him on the campaign trail.

5) ‘Fully coordinated’ uncoordinated ads

Last month, Democratic Sen. Ben Nelson of Nebraska appeared in a political ad. No, not an ad by his own campaign, but a supposedly uncoordinated ad paid for by Democratic Party officials.

The ad prompted American Crossroads, a Republican-leaning Super PAC set up by Karl Rove, to ask the FEC for permission to do the same — to create advertisements that “would be fully coordinated” [PDF] with candidates “insofar as each Member would be consulted on the advertisement script and would then appear in the advertisement.”

How can “fully coordinated” ads not run afoul of the limits on coordination?

The FEC has a two-part coordination test that’s as detailed as it is permissive: The first part is whether groups and candidates have conducted themselves in a way that’s coordinated, such as discussing the particulars of an ad buy. The second part is a more complicated test that looks at the timing to an election and the content of the ad, such as whether it essentially advocates for or against a candidate.

In its request, American Crossroads announced its intent to fully coordinate its ad with a candidate, but argued that the ad it intends to produce could also be interpreted as an issue ad that happens to improve the public image of a candidate for office, but not an ad that advocates for the candidate’s election.

The request was spoofed by Stephen Colbert in a must-read comment letter to the FEC. The issue has yet to be decided by the commission.

6) No need for coordination anyway

Whether or not its their intent, groups and candidates have increasingly sidestepped even the loose restrictions in a rather obvious way. Many groups have simply published the specifics of their spending on their websites or through news reports. A few examples, emphasis ours:

On the pro-Huntsman group’s latest ad buy, as reported in The Hill:

According to Our Destiny spokesman Brian Nick, the ad will start airing statewidein New Hampshire Tuesday morning. "The ad is a substantial buy that will run statewide in New Hampshire on broadcast and cable," according to Nick. 

On a pro-Perry group’s ad blitz in Iowa, reported by CNN:

Ads will begin airing in Iowa on Wednesday on broadcast networks in Cedar Rapids, Des Moines and Omaha, as well as on cable stations in eight cities. The ad buy in Iowa costs $202,000.

On ads launched by a pro-Obama super PAC in July, as reported in the News & Observer:

The Democratic group, called Priorities USA Action, began running a commercial in five key battle ground states – Colorado, Florida, Iowa, Virginia as well as North Carolina. The group said it plans to run the ad for two weeks.

What this means is that even the logistics that candidates are barred from coordinating behind closed doors are — in a practical sense — entirely possible to coordinate out in the open.

“This is a way to communicate information without running afoul of coordination rules,” said Ryan. “The rules are largely rendered meaningless by the way campaigns are now run.”

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