Conservative group challenges red line dividing candidates, super-PACs

A conservative outside spending group has asked the Federal Election Commission (FEC) to soften the red line that divides super-PACs from the fundraising committees of federal candidates.

Former Rep. David McIntosh (R-Ind.), the American Future Fund and its affiliated PAC have filed an advisory request with the FEC that seeks clarification on the “rules on joint fundraising,” Jason Torchinsky, one of the attorneys representing the requestors, said in an e-mail.

The groups gave the FEC four options to consider, two of which would allow a federal candidate’s campaign committee to team up with a super-PAC or nonprofit 501(c)(4) — or both — to create a joint fundraising committee.

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Paul Ryan from the Campaign Legal Center said the request for increased coordination with outside groups could be a “game changer” for campaign finance rules, which he argues have been “chipped away” by recent FEC decisions.

But Torchinsky argues the joint committee rules “date mostly from the early 1980s, and have not been updated in light of developments in the law such as BCRA [the McCain–Feingold Act] and Citizens United.”

Currently, two “hard money” groups — which have contribution limits — are permitted to form a joint committee. Torchinsky gave the example of the Barack Obama campaign and the Democratic National Committee, which have a joint fundraising committee called the Obama Victory Fund 2012. They are able to collaborate on fundraising, but there is a $5,000 total contribution limit, with the money split between the two committees.

The framework proposed by the American Future Fund would allow “hard money” groups to join forces and fundraise with “soft money” groups that can raise unlimited amounts of money.  That would allow donors to write a large check to a joint committee, with $5,000 going to the PAC and campaign committee and the rest going to affiliated super-PACS or 501(c)(4)s. 

Ronald Jacobs, a partner at the law firm Venable, said the decision presented to the FEC would not change the rules that permit candidates from soliciting directly for super-PACs.

Under current FEC rules, a candidate is not allowed to directly solicit funds for a super-PAC, though they are permitted to attend the group’s events. 

Ryan, a senior counsel at the Campaign Legal Center, said it is “ridiculous” that candidates can “disclaim away” the solicitations. Putting super-PACs closer to a candidate would only increase the risk of corruption, he said.

Rick Hasen, campaign law expert and UC Irvine professor of law and political science said that “allowing this will have the same corrupting effect as allowing candidates to take all that money themselves.”

“The candidate will be exceedingly grateful in exchange for the large check — [which goes] mostly to the Super PAC or 501(c)(4),” Hasen said.

Jacobs, a former legal counsel to Jon Huntsman’s super-PAC, said those fears are overblown.

The requestors are “pushing an envelope, but not an unreasonable envelope,” he said. Since the outside groups will likely “be doing most of the fundraising" and without a candidate's signature, supporters will recognize that the candidate themselves are not directly asking for the donations that exceed federal contribution limits.

The American Future Fund has signaled they intend to be active during the 2012 election with a series of hard-hitting ads against President Obama. Though they have only spent nearly $60,000 on independent expenditures this election cycle — $4,000 of it supporting McIntosh, who failed to win the GOP primary for his House seat in Indiana — they shelled out $7.4 million to oppose 21 candidates in the 2010 election cycle, mostly in September and October.

The Campaign Legal Center and Democracy 21 — two prominent campaign finance watchdogs — are planning to team up to contribute formal comments to the FEC advising them to vote against the request.