Lyle Denniston, the National Constitution Center's constitutional literacy adviser, looks at a significant breakthrough in the enforcement of a ban on channeling funds from a PAC to a campaign committee.
THE STATEMENT AT ISSUE:
“The significant prison sentence imposed in this case should cause other political operatives to think twice about circumventing laws that promote transparency in federal elections. As the first conviction for illegal campaign coordination, this case stands as an important step forward in the criminal enforcement of federal campaign finance laws. Illegal campaign coordination can be difficult to defect, which is why we strongly encourage party or campaign insiders to come forward and blow the whistle.”
– Excerpt from remarks by Assistant U.S. Attorney General Leslie R. Caldwell on June 12, commenting on the two-year prison sentence given to Tyler Eugene Harber, a Virginia political consultant, convicted of channeling $325,000 in campaign contributions from a PAC to the campaign committee of a Republican candidate for Congress in 2012. It was the first such case pursued by federal prosecutors.
WE CHECKED THE CONSTITUTION, AND…
The Constitution, as interpreted by the current Supreme Court, has been very tolerant of the flow of hundreds of millions of dollars into election campaigns. That is, for the court’s majority, a matter of strong principle under the First Amendment’s free-speech guarantee. But it is equally clear that the court has insisted that the sources of such contributions must be independent – and strictly so – from the candidates themselves.
On the theory that individuals who want to use their own or their organizations’ money to try to influence elections are actually engaging in a form of political expression (money talks, in other words), the court has said they have a constitutional right to convey what is supposed to be their own political message. By remaining independent, according to this theory, such money sources are not likely to demand and receive favors if the candidate were to win election, even if they share the political and policy agenda of the candidate.
Given existing law that governs federal elections – that is, for the presidency and for Congress – there are only two ways that this independence can be reinforced. One is for the Federal Election Commission to take steps to ensure that coordination, especially between PACs (political action committees) and candidates’ campaign organizations, simply does not exist.
The problem with that alternative, however, is that the FEC is divided equally between partisan commissioners and, as a result, it is now (and long has been) nearly non-functional. Indeed, it has been capable of doing so little to enforce the election finance laws that two of its own members have recently taken the unusual step of filing a formal plea with the FEC to start functioning – a gesture that seems to have little hope of making a difference.
With the rise of so-called “super PACs,” very prominent especially in presidential politics, the flow of money into federal campaigns has grown exponentially. And, as several of the current crop of candidates (declared and undeclared) have demonstrated, there is an unusually close connection between their principal funding source -- a super PAC -- and the candidate’s own organization. The FEC, of course, has found itself literally unable to do anything to attack that kind of implicit if not explicit coordination.
There is, though, an alternative to the FEC. Actual coordination of PAC operations with candidate organizations is a crime under federal campaign law, if it can be proven.
The recent federal case against a Virginia political consultant is thus a significant breakthrough in enforcement of the coordination ban. The consultant, Tyler Eugene Harber, was the campaign manager and political adviser in the November 2012 general election for Chris Perkins, a Republican candidate for Congress. (Perkins ultimately lost.)
Simultaneously, Harber also had a role, according to federal prosecutors, in setting up and operating a PAC. Unlike Perkins’ campaign organization, the PAC is allowed under federal law to raise and spend as much money as it can. The one specific limitation on the PAC’s use of its money is that it is forbidden to coordinate the spending with a candidate or the candidate’s organization.
Harber was accused of the crime of coordination, and he pleaded guilty. In entering that plea, he admitted that he had directed the PAC to spend $325,000 in contributions it had raised to pay for political advertising opposing one of Perkins’ rival candidates. He also admitted that, at the time, he knew what he was doing was illegal, and that he had used deceptive techniques to cover up this coordination. And he confessed that he had lied repeatedly to the FBI during an investigation of this political escapade (a separate crime from the coordination count).
His case, as described by federal prosecutors, was a clear example of direct coordination of the kind that is specifically outlawed. That, apparently, will not always be the situation when some forms of coordination do exist.
A recent study of the role of super PACs in current presidential political activity has shown that these organizations have very close ties to actual or potential candidates for the White House, although at least some of them have worked at avoiding actual mutual control of the PAC and the campaign organization, and have avoided transfers of money directly from PAC to campaign team. That study, by the liberal think tank, the Brennan Center of Justice, voiced strong doubts about the extent to which the PACs are truly independent of the candidates.
“The rise in super PAC spending has been quite significant,” the Center study said, “but the more remarkable recent phenomenon is the decreasing separation between candidates and supporting super PACs.” Without fear of the FEC, the Center said, federal candidates “have gone further and further toward ensuring that super PACs are not independent, but are the principal organ of their campaigns.”
Even allowing fully for the fact that the Brennan Center is known as an organization that is deeply offended by the trend in the Supreme Court’s rulings on campaign financing, its conclusions about the trend lines in now-unfolding presidential politics almost certainly will be noticed by federal prosecutors who have now shown a clear interest in that trend.
Indeed, in announcing the sentencing of Tyler Harber, Justice Department officials said that those preparing to give money to candidates should make themselves aware of how their money will be spent before they actually make a donation that just might wind up spent in an illegal, perhaps criminal, way.
