PACs’ creative rule-bending

Rick Perry’s super-PACs register voters in Iowa and take on the lion’s share of campaign activities since Perry’s official campaign began running out of cash a few weeks ago.

A pro-Hillary Clinton super-PAC uses an obscure loophole to make strategic information public, allowing it to be used by anyone — including the Clinton campaign.

And Chris Christie’s super-PAC is run by a man “who knows what the governor is thinking before he says it,” according to one adviser.

Presidential candidates and their “independent” super-PACS are finding increasingly creative ways to ensure they are coordinated in their strategies and messages, while not falling foul of the laws against coordination.

This legally ambiguous game of charades was foreshadowed by comedians Stephen Colbert and Jon Stewart, who established their own super-PACs and made fun of the “loop-chasm” (loophole) in coordination laws that allowed candidates and their supposedly independent groups to communicate, if not legally “coordinate,” during the 2012 presidential election.

But the loop-chasm has only widened since the Colbert-Stewart skit. Candidates and their super-PACs are today finding previously unimagined flexibility in campaign finance laws that forbid candidates and their teams from coordinating with super-PACs that can raise and spend unlimited money on the candidate’s behalf.

Some examples of the tactics being employed by candidates and their super-PACs in the 2016 campaign:

Rick Perry and Opportunity and Freedom super-PAC

Rick Perry’s super-PACs, which have $17 million in the bank so far, have had to take over activities that would traditionally be the exclusive domain of an official campaign. 

Since it became apparent in recent weeks that Perry’s campaign was short on cash — the campaign has been unable to pay key staff — the former Texas governor’s allied super-PACs (all variations of “Opportunity and Freedom”) have stepped up grassroots organizing and voter registration, along with $1 million-plus television ad buys and digital communications on Perry’s behalf.

Jordan Russell, an Opportunity and Freedom PAC spokesman, said the arrangement is “simple” and that while the super-PACs carry an increasingly heavy load, the group operates entirely independently of Perry’s campaign.

“We’re not allowed to coordinate with the campaign, so we don’t,” Russell said. “As people become more and more familiar with how super-PACs work, they’ll innovate and do things in different ways.

“We had a policy forum back in late July in D.C. and Governor Perry was guest speaker. … [But] it was our policy forum and he was the guest speaker.”

The forum — a roundtable discussion on “the role of
conservatives in leading America to a new era of prosperity,” followed by a keynote speech by Perry — was advertised on the Opportunity and Freedom PAC’s website, and invitations were extended to the public. 

Lawrence Noble, a lawyer for the watchdog group Campaign Legal Center, believes such events — including town hall meetings held by Bobby Jindal’s super-PAC — are legally questionable. 

“I don’t know how you hold a town hall meeting for a candidate without it being an in-kind contribution,” Noble said.

“Very few candidates show up at an event that they know nothing about,” he added. “Putting on a campaign event and discussing with a super-PAC is coordination and an in-kind contribution.”

Hillary Clinton and Correct the Record super-PAC

One of the more innovative examples of a super-PAC navigating the Federal Election Commission (FEC) coordination rules is the pro-Clinton rapid response and opposition research group Correct the Record. The New York Times broke a story in May that Correct the Record, which was started by Clinton ally David Brock, was refashioning itself as a “stand-alone super-PAC that has the ability to coordinate with [Clinton’s] campaign.”

Correct the Record publishes opposition research and strategy on the Internet to defend Clinton and attack her opponents. 

It was initially reported that Correct the Record was using an “Internet exemption” in campaign law that allowed that “free” content posted online would not be counted as coordinated campaign expenditures. But The Washington Post later reported that Correct the Record officials said they were not relying on the individual Internet exemption but instead “a related exemption in the definition of coordinated communications.”

Asked to clarify the competing versions in the Times and the Post, the communications director for Correct the Record, Adrienne Watson, told The Hill “The FEC’s Office of General Counsel has repeatedly concluded that Internet activity that does not fit the FEC definition of a ‘public communication’ may be coordinated with a campaign — including activity paid for by a super-PAC.” 

Campaign Legal Center lawyer Noble remains unconvinced. “The Internet is not a magic wand so that as long as you touch it to your spending in coordination with the campaign, the spending is exempt from the law.”

Jeb Bush and Right to Rise super-PAC

Of all the candidates, Jeb Bush is the one who has most angered campaign finance reformers, who argue the former Florida governor is making a mockery of coordination laws.

Before Bush officially announced he was running for president — Bush filed with the FEC on June 15 — he spent months doing things that campaign finance lawyer Noble said looked an awful lot like he was running for president.

Noble noted that Bush appears to have decided months before his official announcement not only that he would run for president but that his super-PAC, Right to Rise, would play an important role in his presidential campaign, and so he traveled around the country raising millions of dollars in donations for the super-PAC before pledging to cut ties on the day he announced.

Noble, whose group filed a complaint with the FEC against the Bush super-PAC, described as “egregious” the amount of time Bush spent coordinating with his super-PAC while maintaining he still had not decided whether to run for president.  

Bush’s tactic paid off, with Right to Rise dominating all other super-PACs in fundraising, taking in a midyear haul of more than $100 million. A Right to Rise spokesman said: “We fully comply with all FEC rules and regulations.”

Chris Christie and America Leads super-PAC

If in doubt, use telepathy.

Many of the super-PACs are run by people who are so close to the candidate that they already know what the candidate will think on any given issue. With a close enough confidant running the super-PAC, independent groups can be in sync without breaking coordination laws. 

A prominent exponent of the telepathy strategy is the group supporting the New Jersey governor.

“One of the things that benefits us is that we’re led by Phil Cox,” said Tucker Martin, a senior adviser to America Leads.

“Phil is one of the handful of people who know Governor Christie the very best.

“Because of their work together at the Republican Governors Association they formed a deep friendship. Phil knows what the governor is thinking before he says it.”

Martin said that once Christie announced his candidacy, the “spaceship goes up [and] there’s no communication.”

“[But] you’re not really flying blind if you’ve got a principal like Phil,” he added. 

“If I was a very rich donor who wanted to get into a super-PAC, the first question I’d ask is how close the person leading it is to the candidate.”