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Super PAC 'Independence' Hard To Define: Just Look At Karl Rove, Stephen Colbert FEC Requests

First Posted: 11/10/2011 11:54 am Updated: 01/10/2012 4:12 am

WASHINGTON -- Sitting before the Federal Election Commission is a request from the Karl Rove-linked group American Crossroads for a ruling that allows lawmakers and electoral candidates to appear in certain advertisements paid for by super PACs. Among those who've commented on the proposal is Comedy Central star Stephen Colbert, through his super PAC Americans for a Better Tomorrow, Tomorrow. Colbert wants the commission to approve the request. At least that's what he says.

In his satirical style, Colbert is using his super PAC to drive home a point: the contradiction that is super PAC independence.

Super PACs are formally independent groups not constricted by campaign finance limitations on the size and source of contributions. Their supposed autonomy is what underlies the Supreme Court's 2010 Citizens United v. FEC ruling, which concluded that campaign spending by independent groups could not corrupt the political process. Justice Anthony Kennedy wrote in that decision, "We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption."

As independent groups, super PACs are barred from coordinating with candidates or political parties. But the legal definitions of "independent" and "coordination" are far different from the ordinary understanding of those words.

Colbert's comments highlight this by pulling out a quote from the American Crossroads request: "While these advertisements would be fully coordinated with incumbent Members of Congress facing re-election in 2012, they would presumably not qualify as 'coordinated communications.'"

Colbert's tongue-in-cheek endorsement of that statement reads, "Americans for a Better Tomorrow, Tomorrow agrees that 'fully coordinated' ads shouldn't be counted as 'coordinated communications.' The candidate would merely be appearing as a paid spokesperson, who, coincidentally, is closely aligned with the candidate that he or she also is."

There is already a host of activities on which candidates, political parties and independent groups can collaborate that do not rise to a level of "coordination" under the law. The only area where interaction between outside groups and candidates or parties can be legally labeled coordination is in the creation and distribution of such materials as advertisements, brochures, mailers and other informational products.

"The coordination rules apply to coordinated spending, not coordination between strategies or traveling," explained Paul S. Ryan, FEC director of the Campaign Legal Center. "The only thing that cannot be coordinated, that they cannot talk about, is where the super PAC is going to run ads, how much those ads cost, or what is in those ads or how long they will stay up."

The American Crossroads request aims to avoid the FEC's definition of coordinated communication by casting the prospective super PAC ad featuring a candidate as an ad that focuses on an issue, rather than the victory or defeat of a candidate, and just happens to feature someone running for office. This has already been done by the Nebraska Democratic Party when it showcased Sen. Ben Nelson (D-Neb.), up for reelection in 2012, in ads that touted fiscal responsibility.

WATCH the Ben Nelson ad:

Under the coordination rules, outside groups and the candidates or parties can discuss campaign strategy, so long as those conversations do not address the placing of ads or sharing of materials.

"Generally you can talk politics. There's no bar," said Karl Sandstrom, of counsel to the Perkins Coie political law practice and a former FEC commissioner. "That's why there's a need of further elaboration from the commission. Politics is about associating with people. When do the results of that association [constitute] in-kind contribution or trigger the coordination communication test?"

The FEC has also permitted lawmakers to appear at events, even fundraisers, for outside groups that are allowed to raise unlimited contributions from corporations, individuals and unions.

Congressional Republicans, for example, attended the Nov. 2 launch event for a new super PAC, the Congressional Leadership Fund, that will focus on retaining the GOP House majority in the 2012 election. Earlier this year, Republican presidential candidate Mitt Romney attended a fundraising event for Restore Our Future, a super PAC run by former Romney staffers that supports his candidacy.

Candidates and elected officials are even allowed to raise money for super PACs and other outside groups so long as they keep their fundraising request within the contribution limit that applies to candidates. A donor solicited by an elected official could, of course, give in excess of the maximum amount that the official requested.

"It would be perfectly legal for Mitt Romney to show up at a Restore Our Future fundraiser and have the director of the super PAC take the stage, introduce Romney and then solicit money from the crowd for unlimited donations [before Romney took the stage]," Ryan said.

Congressional Democrats, for their part, have actively raised money for two super PACs backing their congressional candidates. House Minority Leader Nancy Pelosi (D-Calif.) sent an email solicitation for the House Majority PAC, a group seeking to win the House majority for the Democrats. Majority PAC, a super PAC focused on protecting the Democrats' majority in the Senate, has benefited from fundraising solicitations by three Senate Democrats with huge donor lists -- Majority Leader Harry Reid (D-Nev.), Sen. John Kerry (D-Mass.) and Sen. Al Franken (D-Minn.). All of these solicitations asked for limited contributions to a maximum of $5,000.

Despite all of this legal interaction between lawmakers and super PACs, one member of Congress wants to bring them even closer. Sen. Mike Lee (R-Utah) is asking the FEC to allow his leadership PAC to open a super PAC account to collect unlimited contributions.

There is also one way to get around all rules restricting coordination of spending and ads: public disclosure. Any information about spending or ad buys that is made publicly available by a candidate's campaign or political party can then be used by an independent group to inform its spending and advertising decisions.

"The coordination rules have no application if the information is public," Ryan said. "If the candidate just puts up on their website information on ad buys, that enables a super PAC to avoid duplicating the candidate's efforts."

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