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The imposing debate facing campaign finance reformers in the post-Citizens United landscape may ultimately come down to answering the question, "What does 'independent' really mean?" Is it possible for PACs to spend millions of dollars towards electing a stated candidate with no coordination whatsoever between the two? The answer that is becoming increasingly apparent is, 'no.'
Richard Briffault of the Columbia Law Review authored an analysis of the issue, finding:
"[I]if the law is to continue to limit contributions because of the dangers of corruption and the appearance of corruption they pose, and to maintain the integrity of the contribution/expenditure distinction that has been a foundational part of our campaign finance law for nearly four decades, it is essential to redefine coordination to address the emergence of single-candidate Super PACs. The proposal in this Essay is intended as a contribution to that process."
The 'independent' nature of an independent expenditure group, like a Super PAC, rests primarily in whether or not campaigns are coordinating with their political action committee counterparts. This was the central caveat cited by the Supreme Court when it decided Citizens United v. FEC in 2010. Yet the legal precedent reaches back even further.
The 1976 case Buckley v. Valeo established a legal line between expenditures (which are protected by the First Amendment) and contributions which can be, and still are, limited.
The top-two competing Super PACs in 2012 were Priorities USA Action, which supported Barack Obama, and Restore Our Future, Mitt Romney's primary 'independent' supporter. Spending $65,166,859 and $153,741,731, respectively, neither group's leadership fell more than one degree away from the candidate they supported. Moreover, both organizations shared a stated purpose of electing their respective candidates.
Priorities USA Action was founded by Bill Burton and Sean Sweeney, both worked in the White House under Obama. Similarly, Charles Spies is the Treasurer for Restore Our Future and served as general council on Romney's 2008 campaign.
Neither case represents an outright legal breach, but both stretch the limits of what an 'independent' entity should be. Briffalt mentioned that "in virtually all respects... these single-candidate Super PACs were alter egos for the official campaign committees of the candidates whom they existed to serve."
Even though legal parameters do exist to test whether or not coordination is taking place, the Federal Elections Commission has appeared both unwilling and unable to resolve allegations of misconduct. However, there are multiple factors preventing prosecution aside from an ineffectual FEC.
Coordination between Super PACs and campaign committees can legally play out through the media and there are no guidelines dictating who can and cannot run a Super PAC. Both PAC and campaign can easily pick up on broadcasted themes or messages and follow suit without uttering a word.
Although any prior agreements made between a PAC associate and a candidate would be considered illegal, uncovering such a plot would require an FBI-style investigation. Furthermore, even if blatant coordination were to be taking place during an election, it remains very easy to 'telephone' information through a plethora of contacts before it ends up in the right hands.
Consequently, the political landscape is now experiencing a vacuum of influence, especially on the Republican side, when it comes to political messaging. Longstanding contribution limits on candidates (currently at $2,600 per citizen per candidate) would be extremely difficult to overturn in court -- paving the way for wealthy donors to put their dollars and influence towards Super PACs instead of traditional, party-controlled, campaign committees.
Although the various Super PACs like Restore Our Future, American Crossroads, and Priorities USA Action are hardly nonpartisan operations, their pseudo-autonomous nature has fractured party lines in unanticipated ways.
