Having worried about candidate fundraising for independent committees—officials were “vexed” about this prospect, the press reported—the Minnesota Campaign Finance and Public Disclosure Board appears poised to act on that worry. A new draft it will consider next week concludes that any candidate fundraising support for an independent committee is “coordination” and blocks the committee from proceeding with unlimited expenditures for the candidate.  Minn. Campaign Fin. & Pub. Disclosure Bd., Draft Advisory Op. 437 (Feb. 11, 2013).

On this second try, the Board misconstrues the theory of independence established under Buckley v. Valeo,  evidently expecting to overcome this difficulty by ignoring Buckley and distinguishing away the Colorado Republican case of 1996.  The draft winds up as a ringing statement of the policy the Board prefers, but it works less well as a piece of cogent legal analysis.

The draft is best read together with a memorandum to the Board that delves more into the constitutional basis for this conclusion.  Memorandum from Executive Director Gary Goldsmith to Board Members (Feb. 4 2013). In sum, the Board patches together a claim out of the following propositions:

1. An independent expenditure includes not only the express advocacy, but any and all activities, including fundraising, that makes it possible to create the ad.

Problem:  the Board fashions this prong of the argument out of definitions of independent expenditures and expenditures under Minnesota law, and not with reference to governing constitutional authority. (See below).  It concludes that these statutory definitions require an independent expenditure to include a candidate’s “active participation in at least one of the various processes or activities that are undertaken to make the expenditure.” Draft Advisory Op. at 4.

But the Buckley Court found the “value” of the independent expenditure to the candidate to reside in the quality of a message to voters.  Buckley at 46. This message is at the heart of the definition of an independent expenditure—an expenditure “expressly advocating” the election or defeat of a candidate.  When raising funds for an independent committee, the candidate is only helping the committee with the resources needed to make expenditures—not with making a specific expenditure in the form of a persuasive communication to the voter, crafted to the satisfaction of the candidate.

2. A candidate who raises money for the committee is “cooperating” with the committee in making the expenditure: this is enough to defeat independence without involvement by the candidate in a decision to run an ad or in the choice made on the timing, production and content of the ad.

Problem:  The candidate who is raising money for the committee is cooperating with the Committee only in raising money—she is only further cooperating in the making of an expenditure if one accepts the labored statutory construction of 1 above and disregards core Buckley doctrine.

Assume that the independent committee uses the money raised by the candidate to run a bad ad, one that is out of step with the candidate’s campaign strategy and harmful to it.  Did the candidate cooperate in the making of the ad, or imply “consent” to it?   If someone asks for a loan of my car, I know that I am supplying a means of transportation, but I am hardly consenting to any use of the car. But I am taking a risk that the use will not be to my liking, and it is this type of risk that moved the Court to posit the alleviated danger of a quid pro quo on which the constitutional protection of independent expenditures rests.

3. The candidate and the donor could be locked into quid pro quo corruption even if the candidate has no say in the advertising.

Problem:   The candidate and the donor could be entangled in this quid pro quo in all sorts of ways, on this theory, without the candidate offering direct assistance to the committee or having any contact with it at all.  The candidate could publicly appeal for funds to the committee, never having given the committee notice of this move, or contact donors to urge them to consider offering the committee this support.

The Board does not explain how far it would have this understanding of cooperation extend, but it would apparently take it far—all the way to general “promotion” of an independent committee without any explicit appeal for funds.  Draft Advisory Op. at 5.  Under the Board’s theory, a public statement of support for the committee would constitute “cooperation” in any expenditure.  The Board musters no constitutional defense of this position, and there is not an obvious one available.

4. That the candidate may not be raising the money for a specific ad is immaterial, because funds are fungible and any fundraising help, however the funds are used, disqualifies the committee from making a subsequent independent expenditure for that candidate.

Problem:   This point merely underscores that under the Board’s theory, the disqualification of independence rests on actions that may be removed in fact as well as in theory from the actual expenditure on behalf of the candidate.

5. Because Minnesota law can ban corporate contributions to candidates, and because super PACs are the only means by which independent committees can use corporate funds for the benefit of a candidate, strict coordination bans are necessary to prevent the channel for indirect corporate contributions created by Citizens United.

Problem:  Candidates in Minnesota have to comply with other contributions limits, such as limits on individual contributions, and super PACs allow for individuals, too, to support candidates in amounts well in excess of those limits.  So why would the particular case of corporate money justify the Board’s restrictive reading of independence?  Moreover, the reference to corporate spending weakens the Board’s position by suggesting that its primary motivation is to limit the impact of Citizens United.

6. The Minnesota legislature intended the “highest degree of separation” between the candidate and the committee. Draft Advisory Op. at 3.

Problem: This  may well have been the legislature’s intention, but it carries only so much weight.  More decisive are the constitutional limits on the execution of that intention.  As a matter of constitutional analysis, the reference to the legislature’s intention belongs in the “neither here nor there” category.

So much, then, for the specific elements of the Board argument.  Buckley, as noted, falls by the wayside, ignored in this analysis.  But the legal memorandum submitted to the Board addresses the objection that it cannot reconcile its position with the first of the Colorado Republican cases, decided in 1996, which allows for independent expenditures by party organizations that by definition are engaged continuously with candidates in all their activities. The Board answers that the Colorado Republican Court intended only to bar absolute, presumptive prohibitions on independent spending.

The Board’s intended meaning here is something of a mystery.  This reading leaves open the very question the Board is supposed to be addressing—if independent spending cannot be prohibited altogether, what in light of Buckley can be considered “coordination,” “cooperation” or “consent” incompatible with a claim of independence?  This brings the Board to fundraising or promotional support in one form or another, and the analysis is unpersuasive.

Moreover, it probably did not serve the Board well to cite Colorado Republican,  because the case supports the view that it is coordination with the candidate around a specific expenditure, not other candidate support for the committee, that bears on the determination of a committee’s independence.  Colorado Republican Campaign Comm. v. Fed. Election Comm’n, 518 U.S. 604, 614 (1996) (focusing on the “development of the [ad] script” and related discussions of it and on the “advertising campaign … developed by the Colorado Party.”). Justice Kennedy in his concurring opinion also put the emphasis on the absence of “any factual finding that the Party had consulted with any candidate in the making or planning of the advertising campaign in question.”  Id. at 619 (emphasis added). The Court in Colorado Republican adopted the position that committees could maintain close relationships with their candidates—including their all-critical dependence on their fundraising—and still remain independent in funding “advertising campaigns” for candidates, provided that the candidates did not coordinate with the committee those specific advertisements.

The Board makes a run at explaining how its theory cannot be reconciled with the structure and operations of parties.  In sum, it states that parties engaged in all sorts of activities, not only expenditures, and so candidates, by supporting party fundraising, are not merely funding independent expenditures.  Draft Advisory Op. at 5.  This argument does not fit well with the Board’s previous insistence that all money is fungible, and that any candidate fundraising for an independent committee is attributable for these purposes to independent spending.  A candidate raising money for a party known and expected to make independent expenditures would, on this view, “consent” to any independent expenditure the party then makes—whatever the other activities the party conducts for other candidates.  (It is also not true that independent non-party committees only make independent expenditures: so-called Carey PACs can make both contributions and independent expenditures, functioning some of the time like a regular committee, and at other times like an independent committee.)

The Board made clear that it was troubled by the appearances of candidate fundraising for independent committees, and now it professes concern over the integrity of the state ban on corporate contributions.  It can be reasonably moved by both appearances and the dangers presented by corporate activity in elections. In neither case can its sincerity be questioned.  This does not rescue its case on the law.