Spectators of campaign finance are waiting for the next big case, and many bets have been placed on the RNC's suit to lift the limits on contributions to party independent expenditure programs.  Now another entry into the sweepstakes: the question of whether an independent committee (or “hybrid”) can retain its independence if it also makes contributions, or functions within a family of related organizations that includes one making contributions.  See Carey v. FEC, 791 F. Supp. 2d 121 (D.D.C. 2011).  At issue is the capacity of the self-proclaimed independent committee to collect unlimited contributions.

A sense is building in media quarters that the Wisconsin “issue advocacy” investigation, still in limbo in the courts, might be a pivotal moment in the campaign finance reform debate. It is a spicy story: a criminal investigation with allegations about conspiracies and mention of emails to Karl Rove. And it could turn out that state law was violated. At this point there is no way of knowing. Clearer is the central issue arising out of the case: whether the First Amendment protects “a candidate’s promotion and support of issues advanced by an issue advocacy group” where “the speech may benefit his or her campaign because the position taken on the issues coincides with his or her own.”  O’Keefe v. Schmitz, No. 14–C–139, 2014  WL 1795139 (E.D. Wis. 2014).

At a time of intense struggle over civil enforcement of campaign finance laws, Wisconsin’s  “John Doe” case turns the discussion to the invocation of criminal law in a way not seen since the investigations of the 1996 presidential election campaign.

In the discussion of Super PACs,  seemingly different concerns tend to intermingle or become fused together, creating confusion.  Most obvious is the continuing disagreement about whether candidate support for an independent committee, particularly fundraising, results in “coordination.”  Some argue—some propose an amendment to the law to provide—that a candidate’s public endorsement of a committee, including but not limited to appeals for funds, is coordination.  Another view distinguishes among Super PACs and would subject single-candidate committees to stricter coordination than others.

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).