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?

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.

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.