Presidential front-runner Mitt Romney knows that he can’t talk to the people who run the notorious “super PAC” that may have won the Iowa caucuses for him.
“It's illegal, as you probably know. I'm not allowed to communicate with a super PAC in any way, shape or form,” he said in December on MSNBC’s Morning Joe show. “My goodness, if we coordinate in any way whatsoever, we go to the Big House.”
Well, probably not. Criminal prosecution is theoretically possible, but highly unlikely — and even civil sanctions are rare, according to a review of Federal Election Commission actions.
Since 1999, the FEC has conducted a total of three investigations into alleged coordination between a candidate committee and an individual or organization making “independent expenditures.” Two of those probes resulted in fines totaling $26,000, according to a Center for Public Integrity investigation.
The Citizens United Supreme Court decision and a lower-court ruling in 2010 allowed corporations, individuals and labor unions to make unlimited contributions to independent organizations that use the money to support or defeat a candidate. The ruling led to the creation of “super PACs.”
There is no established fine for offenders. It is up to the six-member FEC — split evenly between Republicans and Democrats — to decide on punishment.
“They have the final say in how much a committee will be paying for a civil penalty,” said Christian Hilland, an FEC spokesman.
Small fines and infrequent investigations stem from the “exceedingly difficult” nature of investigating coordinating activities claims, said former FEC commissioner Karl Sandstrom.
“It requires evidence with respect to communications and conversations that took place, and usually those are not documented,” Sandstrom said.
The regulations governing independent expenditures are so specific that unless the commissioners have a witness to one of those consultations, the FEC is unlikely to gather enough evidence to open an investigation.
An expenditure is not independent if the candidate or his staff is “materially involved in decisions regarding the communications” or “shares financial responsibility” for it, according to FEC rules.
In the past, the rules banning coordination didn’t get much attention.
Prior to the super PAC era, only individuals, party committees, traditional PACs and nonprofits that refused corporate and labor union donations made independent expenditures. Because super PACs can raise such extraordinary sums of money, concerns about coordination have grown.
Despite the weak enforcement and low fines, the coordination rule faced a challenge in October.
Conservative super PAC American Crossroads asked the FEC to allow candidates to appear in super PAC ads. The PAC argued that while the ads are “fully coordinated” with candidates, they should not count as “coordinated communications” in the campaign finance sense.
FEC commissioners deadlocked 3-3, meaning the rule remains unchanged.
The super PAC that Romney took such care to distance himself from is called “Restore Our Future,” which spent more than $4.1 million on advertising and direct mail attacking former House Speaker Newt Gingrich, primarily in Iowa.
The ads were blamed — or credited, depending on your perspective — for Gingrich’s plummet in the polls and a distant fourth-place finish in the Iowa caucuses. Romney stayed above the fray while the super PAC did the dirty work.
The PAC was founded and run by operatives from Romney’s 2008 presidential campaign, including Charles Spies, former chief financial officer, Carl Forti, former political director, and Larry McCarthy, a former media team member.
Billionaire casino mogul Sheldon Adelson has answered by writing a $5 million check to “Winning Our Future,” a Gingrich-supporting super PAC. The money is expected to fund a $3.4 million ad campaign in South Carolina criticizing Romney’s tenure with private equity firm Bain Capital.
The most recent FEC investigation regarding coordination was settled in May 2009 and involved the election committee of former Rep. Joe Schwarz, R-Mich., and the Republican Main Street Partnership PAC.
The FEC uncovered emails spanning six months in 2006 between members of the PAC and the Schwarz campaign. One email revealed Schwarz campaign director Matt Marsden had contacted the PAC’s treasurer with a suggestion for a radio ad on behalf of Schwarz. One week later, two radio stations ran ads following the theme the Schwarz director suggested. Other emails revealed Schwarz staffers recommended which radio stations the PAC should target.
The complaint was filed by Club for Growth, a conservative PAC backing Schwarz’s main challenger. Schwarz vehemently denied his staff broke any laws and spent around $50,000 and three years fighting the charge before agreeing to settle, according to The Jackson (Michigan) Citizen Patriot.
Each group was fined $2,500.
One of the FEC’s most high-profile investigations resulted in no fines.
The Republican National Committee and the 2004 Bush campaign filed a complaint against liberal PAC MoveOn.org and its affiliates for coordination with the John Kerry campaign. The investigation did not turn up enough evidence to fine the group even with Kerry’s hiring of Zach Exley, a MoveOn.org project director.
The FEC investigates illegal coordination claims based on complaints, but occasionally another government agency or the FEC will recommend an investigation, Hilland said.
Once a complaint is filed, commissioners open an investigation and decide whether or not penalties are warranted and, if so, how much the candidate or outside committee should be fined.
Top independent expenditures through Monday by super PACs supporting presidential candidates include Restore Our Future ($7.8 million); Gingrich supporter “Winning Our Future” ($4.3 million) and “Strong America Now” ($125,000); Texas Gov. Rick Perry supporter “Make Us Great Again” ($4.0 million); Ron Paul supporter “Endorse Liberty” ($2.9 million); former Utah Gov. Jon Huntsman supporter “Our Destiny PAC” ($2.5 million); Rick Santorum supporter “Red, White and Blue Fund” ($1.3 million) and “Leaders for Families” ($218,000); and President Barack Obama supporter “Priorities USA Action” ($321,000), according to an analysis of FEC data.
An FEC complaint is confidential until the case is closed, so it is unknown if any coordination complaints have been filed unless the filer makes it public.
Election watchdogs Democracy 21 and the Campaign Legal Center filed a related complaint against Rick Perry and the Make Us Great Again PAC, alleging that Perry used several video clips, free of charge, in his own ad that Make Us Great Again produced. This constitutes an illegal in-kind contribution, the groups say.
The complaint does not explicitly reference the coordination rule, but Campaign Legal Center attorney Paul Ryan said campaign contribution limits and coordination rules are directly related.
“The whole purpose of the coordination rules is to prevent a candidate from evading campaign contribution rules,” Ryan said. “Without them, the contribution rules would be pretty meaningless.”
This story has been updated.