WASHINGTON -- Freshman Sen. Mike Lee (R-Utah), a member of the Tea Party Caucus, is pushing the boundaries of campaign finance law by seeking to open a super PAC account within his leadership PAC. Having two separate, segregated accounts under the banner of his Constitutional Conservatives Fund would allow Lee to accept unlimited contributions from corporations, unions and individuals.
Earlier this month, the Federal Election Commission announced that most political action committees may open a separate, segregated account to accept such unlimited contributions -- "soft money" -- so long as the funds are spent solely on independent expenditures, campaign ads and materials. Groups with the double accounts are known as hybrid PACs. The FEC issued the ruling after it reached an August consent judgment on the same issue in the case of Carey v. FEC.
The question that Lee raises is whether this new rule applies to leadership PACs, which are created by a lawmaker.
Lee plans on using the Constitutional Conservatives Fund to support conservative candidates through independent expenditures much as Sen. Jim DeMint (R-S.C.) did with his leadership PAC in the 2010 midterm elections.
"The Constitution simply does not permit the government to suppress free speech by restricting the right to make contributions to Independent Expenditures," says the advisory opinion request submitted to the FEC by Dan Backer, lawyer for Lee's fund.
This argument builds on the Supreme Court's 2010 ruling in Citizens United v. FEC that contributions to independent groups making independent electoral expenditures do not create the appearance of corruption and, therefore, cannot be restricted by the government.
Leadership PACs can only make independent expenditures to support candidates other than the sponsoring lawmaker.
In 2003, the Supreme Court ruled in McConnell v. FEC, the direct challenge to the McCain-Feingold campaign finance law, that limitations on contributions to committees linked to lawmakers, whether they be campaign committees or PACs, are constitutional.
"It's an interesting idea, except for the fact that it's illegal," said Fred Wertheimer, president of Democracy 21. "The law prohibits any committee controlled by an officeholder from soliciting unlimited funds. Leadership PACs cannot have 'soft money' accounts."
Backer, the lawyer representing the Constitutional Conservatives Fund and also the lead attorney for the plaintiffs in Carey v. FEC, said he believes otherwise.
Donors are contributing to a PAC "whose values they share, that happens to be a leadership PAC, and that PAC is using appropriate resources to conduct already lawful activity," Backer told HuffPost in an e-mail. "I don't see anything particularly novel or unique in this request -- it certainly seems pretty clear under the law as it stands today."
Where the Constitutional Conservatives Fund may run into trouble is that, besides electing like-minded lawmakers, leadership PACs are routinely used by politicians to improve their standing within their party caucuses and thus help them gain committee seats, chairmanships and leadership positions. This type of ingratiation is vital for those seeking to climb the ranks in Congress.
The advisory opinion request addresses this by noting that the Court stressed in Citizens United that quid pro quo corruption, or the appearance thereof, is the only type of influence that merits a government response. The ruling, written by Justice Anthony Kennedy, states, "Ingratiation and access ... are not corruption."
Fundraising for the new super PAC account would likely be governed by rules set by the FEC earlier in 2011 that allow lawmakers themselves to raise only limited funds -- maximum donation of $5,000 -- for a super PAC. Solicitations for unlimited contributions would have to come from another employee or agent of the PAC.
The FEC, which has a history of deadlocked votes due to the ideological split between its commissioners, has become even more divided in recent years, with the disagreement filtering down to mundane matters like routine enforcement issues.
Noting that it's not possible to predict FEC actions anymore, Democracy 21's Wertheimer said, "People are throwing everything they can think of up against the wall to see what sticks."