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Dumb e-mails aside, it's not at all clear that Governor Scott Walker, or anyone on his campaign, illegally coordinated with the outside groups trying to help him win the recall. But that's partly because the scandal here isn't what's illegal. It's what's legal.
"The kind of coordination that's legal is very much akin to what's illegal," says Sheila Krumholz, executive director of the campaign-finance watchdog group Open Secrets. "The only person who can distinguish the two is an election lawyer."
This is most clearly seen by looking at the relationships between some campaigns and allied independent groups that everyone agrees were within the bounds of the law.
If you followed the 2012 Republican primaries closely you might remember the Restore Our Future superPAC. It was created for the sole and explicit purpose of helping Mitt Romney with the GOP nomination. It was run by Charles Spiers, general counsel to Romney's 2008 campaign, who said it was "an independent effort focused on getting Romney elected president."
So Romney's independent Super PAC was run by one of Romney's lawyer, who knew more than virtually anyone else alive about Romney's campaign, his campaign strategy and his donor list. When Newt Gingrich unexpectedly surged to the top of the polls, this "independent" group took over the airwaves to destroy Gingrich — and Romney was able to pretend he had nothing to do with it.
Gingrich was furious. "This is a man whose staff created the PAC, his millionaire friends fund the PAC, he pretends he has nothing to do with the PAC — it's baloney. He's not telling the American people the truth," he told CBS.
So Gingrich did the only thing he could do: he tapped longtime aid Rick Tyler to create his own Super PAC, Winning Our Future, that could also absorb unlimited donations and slam Romney without accountability. This, too, was a legally independent effort run by someone intimately familiar with Gingrich's operation.
"What we can do is listen to the campaign and listen to the candidate through the media and determine what the campaign is doing, what the strategy is and echo that strategy, thus expanding the campaign," Tyler told NPR.
It's no different on the Democratic side. When members of the Obama administration realized they would need a Super PAC of their own, the job fell to Bill Burton, a top White House communications staffer, and Sean Sweeney, a top aide to Rahm Emanuel, to build it.
Perhaps the most ridiculous of the superPACs was the one supporting Jon Huntsman: Like the others, it was run by a top Huntsman staffer. Unlike the others, it was mainly funded by the candidate's father. It's safe to assume father and son occasionally spoke.
But then, candidates aren't barred from being involved in the independent groups backing their bids. They're allowed to fundraise for the superPACs that help them, and hang out with the people running those PACs. They just can't explicitly coordinate their strategy — or, at the least, they can't get caught explicitly coordinating strategy. But then, why would they need to go that far in the first place?
The level of coordination allowed also depends on the kind of ad being produced. A brutal attack ad that ends with the line "so vote for candidate X" is much more stringently regulated than that same brutal attack ad that ends with the line "so call candidate Y and tell her: protect our veterans". Both ads have the same effect on voters. But one is "electioneering" under the law. The other is "issue education," and is regulated much more gently.
"The people running these superPACs came from the campaign and often wrote the campaign's strategy so they don't need to coordinate to know what the campaign will say or do," says Krumholz. "They don't need to get on the same page about strategy and language. They speak the same language to begin with."
And all this is legal. If Walker's campaign took a further step over the line — and it's not at all clear they did — then they were incredibly, incredibly stupid. But they weren't doing anything all that different than what campaigns are allowed to do under the law. Campaign-finance law is better these days at creating jobs for lawyers than protecting against corruption.
