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.

As noted here Wednesday, the Minnesota Campaign Finance and Public Disclosure Board is stymied by the question of whether an independent committee can have contact with a candidate and remain “independent” and able to make unlimited expenditures on the candidate’s behalf. The anonymous candidate seeking an opinion from the Board would like to raise money for a committee that intends to help him or her, later, on an “independent” basis. Under federal law, and subject to conditions, this is possible if the candidate has no say in how the money is spent. Reform critics think this result is indefensible. Their view of independence is that it requires complete separation of the candidate from the committee.

Minnesota campaign finance officials are "vexed" by a request for an advisory opinion from an unnamed candidate. She (or he) would like to raise money for an independent expenditure committee that intends to support her—with independent expenditures. Minn. campaign board vexed by candidate's question regarding fundraising by outside groups, Star Tribune, Nov. 5, 2013, http://www.startribune.com/politics/national/230680961.html. Does this fundraising support make the committee any less independent and unable to spend unlimited sums on her behalf?

The recent emails from the Federal Election Commission, unearthed through a Freedom of Information Act request, don't reveal much that is new about the agency or the election law bar.  That Republican or Democratic lawyers might speak an encouraging word to the Commissioners on their side of the aisle does not qualify as breaking news. Here and there is a congratulatory note, or a substantive but not case-specific comment: but that's about it. Should anyone be surprised, it would be the long-time skeptic who has imagined that the parties are weighing in on pending decisions in the dead of night. There is none of that in these disclosures.