This month, the first person ever was sentenced to prison for illegal use of a Super PAC. Don't expect many more to follow in his footsteps. As the 2016 campaign gears up, these big-money outside groups and the donors behind them are more influential, and less independent from the candidates, than ever.
Let's start with the man who went too far: Virginia-based political consultant Tyler Harber. In 2012, Harber was managing a US House candidate's campaign — while also helping start and run a Super PAC that aired hundreds of thousands of dollars' worth of ads backing that candidate.
That was blatantly illegal. Unlike candidates, Super PACs are permitted to raise unlimited sums of money from each of their donors. That's because they're supposed to be outside groups operating independently. They're not allowed to coordinate with candidates, and they certainly can't be run by the candidate's own current top aide.
Harber's behavior was crude and amateurish. His chicanery also included skimming off some of the Super PAC's money for himself and his family. As such, he was busted, and has earned a two-year prison sentence.
But the spirit of what he did isn't unusual at all. Practically every presidential candidate this year has a Super PAC that claims to be independent, but is actually run by the candidate's trusted allies and acting in accordance with his or her strategy. Most of these, though, go about things in a more clever way — bending the law and taking advantage of loopholes, rather than blatantly defying it. But the closer you look at these more proper Super PACs, the clearer the system's corruption and bankruptcy becomes.
In his Citizens United v. FEC decision, Justice Anthony Kennedy said there was no need to put campaign fundraising limits on outside groups. Since these groups weren't connected to the candidates themselves, he reasoned, their spending wouldn't "give rise to corruption or the appearance of corruption."
This year's candidates and their Super PACs are doing their best to prove him wrong. To be more specific, Carly Fiorina, Jeb Bush, and Marco Rubio are doing their best to prove him wrong.
A pro–Carly Fiorina Super PAC has ridiculously changed its name from "Carly for America" to "CARLY for America"
Perhaps the most absurd example is the Super PAC supporting Carly Fiorina. According to a recent report by the Wall Street Journal's Reid Epstein, despite not being allowed to coordinate with or have any official involvement with Fiorina's campaign, the people behind this Super PAC decided to name it "Carly for America."
Now, the FEC has no problem whatsoever with a Super PAC being formed purely to benefit Fiorina's campaign. By now, Super PACs that exist for no other reason but to air ads helping a single candidate are de rigueur.
But putting Fiorina's own first name in the Super PAC's name was a bridge too far for the FEC, which called on the group to find a new moniker.
They found one: Conservative, Authentic, Responsive Leadership for You and for America. Or, in acronym form: CARLY For America.
It's an attention-getting stunt, and it's not yet clear if the absurd new name will pass the FEC's muster. But, weirdly enough, if CARLY for America gets its way, it'll actually end up being more transparent than other groups out there.
That's because most Super PACs tend to have very generic, patriotic-sounding names that make them difficult to tell apart from each other. Think something like "Americans for Conservative Freedom." And the name of a Super PAC, which has to be read on air during its TV advertisements, is all most voters ever learn about it.
As a result, in 2012, we had the absurd spectacle of one Super PAC called "Restore Our Future" running ads attacking Newt Gingrich, and another called "Winning Our Future" airing ads attacking Mitt Romney. Political sophisticates knew that the first group was staffed with Romney's former aides, and the second with Gingrich's. But all TV viewers saw were their generic names, without a clear idea of which Super PAC was unofficially affiliated with which candidate.
So why won't the FEC let Carly for America keep "Carly" in its name and let Carly's team own its ads? The problem is that all Super PACs are supposed to be independent — which means the FEC doesn't have a legal way to distinguish "Super PACs formed with the candidate's tacit approval and staffed by his or her recent close aides" from "Super PACs formed by genuinely outside operators."
That means that if the FEC let this "independent" Super PAC put "Carly" in its name, it would have to let anyone start a Super PAC with "Carly" in the name — even people who don't genuinely support Fiorina. That, they think, is asking for trouble. Such a group could use Fiorina's name to fundraise, and voters could mistakenly think her responsible for its tactics. For instance, a loose cannon — or supporters of a rival candidate — could start a "Carly Conservative" Super PAC and air some really controversial, offensive ads that are truly intended to drive voters away from Fiorina. Then there are the growing "scam PACs" that may "exist mostly to pad the pockets of the consultants who run them," as Politico's Ken Vogel wrote.
What we're left with is a "wink wink, nudge nudge" situation where every savvy observer knows which Super PACs are affiliated with which candidate — but all Super PACs have to maintain the legal fiction that they're completely independent. And that's terrible for the average voter's understanding.
Jeb Bush worked closely with his Super PAC for nearly six months
Carly Fiorina's Super PAC might be having fun with its name, but it's Jeb Bush who's made the supposed independence of Super PACs look most like a joke.
For nearly six months after Bush said he would "actively explore" a run for president, he continued to work closely with his Super PAC and raise vast sums of money for it. Indeed, Bush delayed his actual announcement that he was running for president until last week, specifically so he could do these things. (Now that he's a candidate, he can't coordinate with the Super PAC or directly ask donors to give more than a few thousand dollars each to it.)
Other presidential candidates, like Scott Walker and Martin O'Malley, did similar things. But while Super PAC fundraising numbers haven't yet been released, judging by reports, they haven't been able to raise anywhere near as much money as Bush. Though it's not yet clear whether Bush's operation has raised the eye-popping $100 million that's been thrown around as a possibility, it seems that he's raised far more money than his rivals in the GOP field.
Bush's team claims he completely abided by the law. Since Bush wasn't yet an official candidate and isn't a federal officeholder, they argue, it was perfectly legal for him to work with a Super PAC and raise the kind of money that fundraising limits don't allow actual candidates to ask for.
But FEC chair Ann Ravel disagreed. She wrote an op-ed that didn't name Bush specifically but called behavior like his "absurd." Once a certain amount of money is raised, Ravel wrote, politicians "are either exploring a run for office or they are candidates." They "cannot avoid campaign finance laws merely by not calling themselves candidates," she continued. In other words, Ravel is suggesting that much of the money Bush's Super PAC raised is illegitimate.
If there was any doubt about how crucial Bush's Super PAC is to his campaign strategy, that was cast aside last week, when Andrew Kaczynski and Ilan Ben-Meir of BuzzFeed News managed to listen in on the group's call with its donors. Its top aide, Mike Murphy, a longtime adviser to Bush, said he was "well-informed as a week ago" about what was going on in Bush's campaign. He told donors about the three themes of Bush's message, and about his campaign plans for the near future.
He even said that the Super PAC had filmed new footage of Bush, to use in later ads. "We actually were able to do some filming before the wall went down," he said (referring to June 4, when Bush's team cut off contact with the Super PAC). "We have some incredible stuff in the can that we shot with the governor."
Marco Rubio and his deep-pocketed donor
The Super PAC backing Marco Rubio raises some rather different uncomfortable questions — because the man who's expected to be its leading funder, billionaire auto dealer Norman Braman, has had a truly remarkable web of financial ties with the Rubio family, going back several years.
Indeed, in addition to more traditional campaign donations and bundling, Braman's money has frequently gone into Rubio and his wife's personal accounts, as the New York Times's Michael Barbaro and Steve Eder chronicled in an excellent report last month. For instance:
- In 2010, while Rubio was a Senate candidate, Braman's company hired him as a lawyer, and paid him for seven months.
- Not long before, Rubio took a teaching job at Florida International University, under the condition that he'd have to raise private funds to pay his salary. So, at Rubio's request, Braman chipped in $100,000.
- Once Rubio had joined the Senate in 2011, his wife, Jeanette, became a paid adviser to Braman's charitable foundation, even though she didn't have much experience with philanthropy. (In 2013, Braman's charity gave out only $250 in donations, but it paid Jeanette Rubio $54,000, and spent another $150,000 on air travel, the Tampa Bay Times's Alex Leary reported.)
In all, Barbaro and Eder write, the "personal financial assistance [Braman] has provided to Mr. Rubio and his wife, directly or indirectly," appears "to total in the hundreds of thousands of dollars." And since much of this money came when the Rubios were struggling financially, it must have been greatly appreciated.
Did Braman get anything in return for all this? Well, in the mid-2000s, he wanted millions in state money for a cancer center with his name on it — but Jeb Bush had vetoed the money in 2004. The following year, though, Rubio fought hard for it, and won an eventual $5 million for it. (Barbaro and Eder quote an email from Bush to a lobbyist saying that Rubio "strongly wanted the Braman Cancer money.") And in 2008, when Braman wanted $80 million to fund a genomics center at the University of Miami, Rubio helped deliver those funds, too.
And now that Rubio's running for president, Braman's there for him yet again. He reportedly plans to give up to $10 million to pro-Rubio groups, telling the Washington Post in March, "If there is a super PAC that's founded, I will give substantially." (Conservative Solutions PAC was founded just weeks later.)
Since Jeb Bush was expected to win the support of most wealthy Florida Republicans, this was hugely important news for Rubio's campaign. In an era of unlimited campaign spending, Rubio only needs to hook a few big fish to ensure his operation will have tens of millions of dollars — and Braman has long been hooked.
The upshot: Super PACs are independent in name only
There's a common thread to these three cases. Our campaign finance regulatory infrastructure currently operates under the assumption that Super PACs are independent entities. Therefore, they're not supposed to coordinate with campaigns.
Indeed, the "independence" of these outside expenditures was crucial to Justice Kennedy's reasoning in Citizens United. Candidate fundraising from individuals could be limited, Kennedy said, because that presents the danger of corruption — payoffs being handed to politicians. But "independent expenditures," Kennedy said, "do not give rise to corruption or the appearance of corruption." Therefore, he reasoned, limits on the spending of outside groups was not just unnecessary but unconstitutional, since they'd restrict speech.
But what has sprung up in practice is a system in which each major candidate has a Super PAC that is operated by trusted former (and possibly future) aides and acts in accordance with the candidate's strategy. And the law isn't set up to distinguish "Super PACs run with the candidate's tacit approval" from "Super PACs run by random outsiders."
Unlike Tyler Harber, who's headed to jail, these political operatives are generally careful not to violate the letter of the law. But whether it's CARLY for America, Jeb Bush's six months of work with his Super PAC aides, or Marco Rubio's longtime closeness with his major donor, these groups are showing that the real scandal is what's legal.