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 IRS is now receiving comments on its Notice of Proposed Rulemaking on (c)(4) activity, and certain of the views so far underscore the choice that the agency faces and does not make in its first set of proposed rules. It is the choice of line, and the “brightness” of that line, distinguishing “candidate-related” from social welfare activity.

Immediately upon the Treasury and IRS's publication of proposed rules on 501(c)(4) activity, the political jockeying began. Reformers said high time; critics replied that the suppression of free speech was at hand. The IRS Notice is not all that dramatic because what the Service may eventually do is up in the air: the IRS invites comments on all aspects of the definition of (c)(4) political activity. There is no way of knowing how this will all end up many months from now. But the IRS appears to be doing what both sides had demanded that it do for different reasons—improve on current rules—and its notice of proposed rulemaking simply calls for comment on a baseline proposal, which is fairly normal for this type of agency rulemaking setting. This is a reasonable place to begin.

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?

Rick Hasen has joined others in arguing that, if in McCutcheon the Supreme Court were to strike down the aggregate limit on political contributions, the large individual donor would be able to amass undesirable influence by donating to joint fundraising committees organized by candidates and parties. The money distributed through those committees is governed by limits—$2600 per participating candidate, etc.—but when first given to the joint fundraising committee, the total donated might be massive, in the millions, and the parties and candidates who would divide it up later could be insidiously grateful to the donor.

If the aggregate limit is a means of enforcing the base limits and blocking circumvention, it raises the question: how effective does an anti-circumvention measure have to be to prevail in a test of the provision’s constitutionality? In the case of the aggregate limit, the inquiry leads quickly to a consideration of a new fact of campaign finance—the super PACs.