How much can a candidate do for a Super PAC without illegally “coordinating” with it? Recent proposals would answer that she has to keep her distance—no publicly (or privately) stated support and no fundraising for the independent committee. A bit of a surprise has developed in the debate. While questioning how far these restrictions can go, Rick Hasen concludes that as a matter of constitutional law, Congress may prohibit the fundraising, and on this point, he sides in theory with Brad Smith of the Center for Competitive Politics. Richard L. Hasen, Super PAC Contributions, Corruption, and the Proxy War Over Coordination, Duke Journal of Constitutional Law & Public Policy (forthcoming), 16-17, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2383452 ; Bradley A. Smith, Super PACs and the Role of “Coordination” in Campaign Finance Law, 49 Willamette L. Rev. 603, 635 (2013).

Rick Hasen and Brad Smith are not often found in the same jurisprudential company.  So it is interesting to consider how they may have arrived there and why, in their judgments about the regulation Buckley would allow, they appear to have erred.

The two agree that coordination requires interaction or contact between the candidate and the committee, but not just any: the contact has to involve the committee’s strategy for achieving its goals. Hasen at 16 (“As … Smith persuasively argues, Buckley’s understanding of coordination focuses on coordination of campaign strategy.”) (emphasis in original).  By urging financial support for the Super PAC, Hasen argues, the candidate “by definition” is coordinating “fundraising strategy.”  Id.  In linking his views to Smith’s, he cites  Smith’s suggestion that the contact between candidate and donor presents a “bargaining opportunity” of the kind that gives rise to actual or apparent corruption.  Hasen at 17; see also Smith at 635.

Hasen is correct that the candidate-committee contact must involve a matter of strategic significance, but Buckley is clear about just what kind of strategy the Court had in mind.  It was the core organizational strategy for persuading voters; it was the independent committee’s control over that message and the means of communicating it.  Because the candidate could not shape the content or the timing of a truly independent message, it might be of  “little assistance,” or even be “counterproductive” to the candidate.  This, in turn, would alleviate the dangers of quid pro quo corruption.  Buckley v. Valeo, 424 U.S. 1, 47 (1976).  Hence the difference between the contribution and the independent expenditure: the independent expenditure is fraught with the risk of failure, or worse, in advancing the candidate’s prospects.  How the committee raises its money for persuasive speech has no bearing on this question of control.

On its own terms, Rick’s position seems somewhat self-contradictory. Rick argues that an explicit interaction between the candidate and the committee is required to achieve coordination, but fundraising, if it were a means of coordinating illegally, does not depend on any such direct contact. The candidate can “urge” donors to support the committee without communicating at all with committee personnel—through public statements or email or mail communications with donors. But  it makes no difference either way: there is no coordination of expenditure strategy in either case. The risk the candidate takes that the committee will get the message wrong, or execute it poorly, remains the same.

Yes, the candidate who appeals for donations to the independent committee is expressing confidence that the committee will fund an effective message.  But this may mean only that, all things considered, the risk that the committee will botch that message is one that the candidate is willing to take.  Maybe she is desperate; maybe she is impressed with the caliber of political operatives running the independent operation, even if these are not people formerly employed by or allied with her.

Brad Smith’s position and Rick’s are different.  Smith, for one, expresses openness to the constitutionality of regulating fundraising, but he doubts, in a footnote, that a way of writing the restriction into workable law can be found.  Smith at 635, n. 129. But Smith’s concern is with fundraising as a “bargaining opportunity” between donor and candidate.  If the donor does give at the candidate’s urging, the candidate owes the donor something: herein lies the potential for corruption or at least its appearance.

But this corruption seems unrelated to the issue of “coordination” with the independent committee.  Any time an officeholder offers or appears to offer official support in exchange for a financial commitment, there is an issue of sale of office, but it is not one that puts in doubt the “independence” of a committee uninvolved in the transaction.  The 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.

Moreover, the corruption identified by Buckley is the one associated with “large … contributions”—the operative word being “contribution.”  Buckley at 26. By law, if the expenditure the committee makes with the donation solicited by the candidate is not coordinated, it is not a contribution to the candidate.  The donor may well have given “something of value” to the candidate and the candidate may offer something in exchange; and this trade of value for official action could support a criminal prosecution.  But the value provided to the candidate does not become a campaign finance problem—a large contribution Congress prohibited to address corruption or its appearance—unless the expenditure of the funds is coordinated with the independent committee.  And, more to the point: without that coordination, the independent committee’s spending rights cannot be abrogated.

To the extent that Brad is worried about the appearance of corruption around the operation of the Super PAC, the bad odor may well envelop the independent committee. But the appearance of corruption, as a constitutional ground of regulation, must be an appearance of the right form of corruption. It cannot sweep more broadly without impinging on the rights under the current case law of the independent committee. Brad recognizes that the appearance must be of the same species of corruption—“in all cases, the appearance of corruption is firmly tied to the actual corruption found by the Court—quid pro quo exchange.” Smith at 616.

And this Court has made very clear, most notoriously in the Arizona public financing case, that it will go to considerable lengths to insulate the speech rights of independent committees, except in cases where its independence is directly in question. In the Arizona case, the Court struck down a state statutory “trigger” that would have released public funds to a candidate facing a certain amount of independent spending. Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806, 2827 (2011). Under the law, the independent committee could still spend freely, but its First Amendment rights were violated by just the tie between the committee’s spending and the “relief” funds it triggered for the candidate in distress.  It is hard to see how the Court would agree to limit independent spending for a candidate because the candidate, in raising money, struck or appeared to strike with the donor a corrupt bargain in which the independent committee was not a participant.

To many unhappy observers of the state of contemporary campaign finance doctrine, the latitude of the Super PAC to operate with the support of allies of the candidate, former staff and friends, and to benefit from the candidate’s endorsement or fundraising, seems intolerably silly. So they say that the committee having this connection to the candidate cannot be “truly” independent. In Buckley’s terms, though, it is, and any complaints should be directed there.