Solicitation and Coordination

 

It’s frustrating for an academic when one’s work is misinterpreted. It’s even more frustrating when that misinterpretation is your own fault, and the “misinterpretation” bears an uncanny resemblance to what you actually wrote.

This arises because there seems to be a growing debate over whether a candidate can solicit funds for a Super PAC without engaging in legal coordination with a Super PAC. The stakes are high here, because if a Super PAC coordinates its expenditures with a candidate, then they are treated as contributions to that candidate, subject to the $5000 limit on PAC giving. Furthermore, that arguably subjects the Super PAC to the full panoply of PAC regulations, making all contributions it receives in excess of $5000 illegal.*

My unwitting contribution to this debate comes at the tail of end of a 34 page article in the Willamette Law Review in which I explain (entirely convincingly, in my opinion) why most claims of Super PAC “coordination” (and indeed many claims of coordination against other types of entities) are not, and should not be considered, “coordination” under the Federal Election Campaign Act and similar state laws. Bradley A. Smith, Super PACs and the Role of Coordination in Campaign Finance Law, 49 Willamette L. Rev. 603 (2013). A near final draft can be found here.

In pages 32-33 of the article, I include a few brief thoughts on are more legitimate claims of coordination, and write, “To have the candidate solicit funds that he knows will be spent to support his election, however, raises the same type of quid pro quo bargaining opportunities that constitute the ‘appearance of corruption’ that concerned the Buckley Court.” 49 Willamette L. Rev at 635.

In a forthcoming article in the Duke Journal of Constitutional Law & Public Policy, Professor Richard Hasen notes this passage, writing:

[Professor Richard] Briffault is on stronger grounds arguing for a rule which treats candidates who urge donors to give to the Super PAC as coordinating with that Super PAC. A candidate who raises funds for a group by definition is coordinating fundraising strategy with that group; the candidate is taking time raising funds for the group. rather than himself. Even Smith seems to agree that treating this activity as coordination would be constitutional under existing doctrine.

Id. at 17 (citing the above passage at 49 Willamette L. Rev 634-35).

All this caught the eye of the indefatigable Bob Bauer, who argues that this is wrong. Bauer agrees with me (as does Hasen – at least I think they agree, making this a formidable trio) that the key to understanding Buckley v. Valeo is the concept of quid pro quo corruption – a bargaining of official favors in exchange for something. Corresponding interests and even gratitude are not enough. But Bauer argues that not any opportunity for bargaining behavior can be regulated under Buckley. He argues that the actual expenditure must be coordinated. Thus, it doesn’t matter if a candidate solicits funds for a Super PAC. If the actual expenditure is not coordinated, than there cannot be a coordinated expenditure. Bob notes that “[t]he same corruption could arise out of a commitment by a donor to give funds to the officeholder’s favored charity, or to another federal candidate or the political party within the limits.”

This is not merely an academic debate, because it appears that zealous legislators are now attempting to use the solicitation issue to define coordination, thus sharply limiting what these PACs might do. For example, Bauer reports in another post that the Minnesota Campaign Finance and Public Disclosure Board appears poised to approve a rule that would define coordination to include any candidate fundraising support for an independent committee, thus preventing  the committee from making unlimited expenditures for the candidate. There are rumbles of similar proposals elsewhere. Those who want to shut down Super PACs believe they have found a way, it appears. After all, “even Smith” agrees, and it’s pretty hard to find a better endorsement for regulation than that. If “even Smith” agrees, surely we have a regulatory winner!

Thus I must, it seems, attempt to clarify my position here. In the passage cited by Hasen and Bauer, I had in mind a particular type of Super PAC – a Super PAC with an announced goal of spending to support the election of a single candidate, with fundraising undertaken by that candidate. As I wrote just before the line that Hasen and Bauer caught,

Professor Briffault is correct when he argues that the FEC’s coordination regulations are based on “an older model of independent committee,” and there may be deserved tweaks to FEC regulations to update those regulations to new political tactics and realities. For example, the FEC allows candidates to personally appeal for contributions of up to $5000 for Super PACs. When thinking of PACs that support many candidates, allowing officeholders and candidates to raise money for PACs seemed like an appropriate way to accommodate the broader political interests of a politician in the election of other candidates and the support of issues. Since no one could contribute more than $5000 to the PAC, and since the PACs receipts would be spread over many recipients in regulated campaign contributions, such a rule posed little threat of corrupt activity, in accord with Buckley’s concern about the quid pro quo possibilities in large dollar fundraising.

49 Willamette L. Rev. at 634-35 (citations omitted).

Then comes the crucial passage, “To have the candidate solicit funds that he knows will be spent to support his election, however, raises the same type of quid pro quo bargaining opportunities that constitute the ‘appearance of corruption’ that concerned the Buckley Court.”

While I can see how this is readily misunderstood to be broader than intended, I think the full context should make clear that I am not suggesting that any candidate solicitation should trigger regulatory possibilities. Indeed, I note that where the funds would be spread over many recipients, there is a strong case against that constituting coordination. I am clearly referring only to single candidate PACs.

But further – and here is where I think I particularly failed to communicate my views effectively – I had in mind not any solicitation, but a particular type of solicitation that involves the candidate and the single candidate Super PAC working closely together. In short, I was thinking of the FEC’s rulings in AO 2003-03,  which permits a federal officeholder attend, be the featured guest, and solicit funds at a fundraising event organized and hosted by the recipient committee, so long as the officeholder only sought funds within the federal limits. (Readers may also want to check out the concurring opinion of Commissioners Toner, Mason, and myself in AO 2003-03). Unfortunately, this type of qualifier is not in the Willamette article, probably because a) this was a short, tentative passage late in the piece (I note only that it “may” be appropriate to “tweak” regulations), and b) because the scenario was fixed enough in my mind, and I have explained it often enough to reporters, so as not to recognize that the passage preceding it didn’t fully outline the scenario I had in mind.

In any case, it continues to strike me, Bob Bauer’s argument on the need to coordinate the “expenditure” notwithstanding, that this type of event, when the soliciting candidate knows that funds raised will be spent on behalf of his election, probably falls within the constitutional scope of “coordination.” In this case, it is not so much the solicitation per se but the appearance of the candidate at the event, and the fact that it is known that the PACs sole purpose is to elect this single candidate. Whether Bob would still disagree even on that point, it is in any case a far narrower range of activity than Bob, Rick, and presumably others have (quite understandably) assigned to the passage. It should not be read at all as a blank license to deem that the act of solicitation generally creates a coordination problem, in large part for reasons Bob states in the two posts cited above, and for other reasons explained in the Willamette article.** I do not reject the opinion in AO 2003-03, which I think is definitely correct on its terms.

Coordination, as I note in the piece, requires an opportunity for bargaining. Mere solicitation does not generally create that opportunity, nor create the appearance of such, as required by Buckley. 

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*But not necessarily so, for reasons I won’t go into here.

**I would agree with Professor Hasen’s broader statement, that solicitation for a group that is spending to support the solicitor’s election does put efforts to regulate on “stronger ground.” “Stronger ground” is not the same as saying I would agree that all or most such proposals are constitutional, and Rick and I would probably disagree on where that constitutional line falls.

The Center for Competitive Politics is now the Institute for Free Speech.