This week, a three-judge panel of the D.C. Circuit Court of Appeals ruled that super PACs can use the names of their candidates they support in their projects and programs. Previously, the Federal Election Commission had forbidden super PACs from invoking candidates’ names in these activities. This regulation was challenged by Pursuing America’s Greatness (PAG), a super PAC that supported Mike Huckabee’s presidential bid. It had used a website and Facebook page entitled “I Like Mike Huckabee.”
Super PACs can only accept unlimited contributions because they are “independent” and do not coordinate with candidates — but that independence is increasingly a farce.
PAG sought an injunction against the FEC enforcing this regulation against it; a district court ruled against PAG, but now the panel has sided with it. Despite Huckabee’s ending his campaign, this remains a live controversy because PAG plans to support other candidates, such as Sen. Kelly Ayotte, R-N.H.
The FEC defended its regulation, by declaring that it was necessary to prevent voter confusion. The court disagreed, arguing that there were more limited remedies available, such as requiring a disclaimer that the group was not an authorized committee of Huckabee. As Robert Bauer notes in this blog post, the court argued that PAG’s freedom of speech trumped the FEC’s pursuit of transparency. If overturning the regulation meant that the government had to make do with “second-best” disclosure, that was an acceptable price.
This decision wears away at the already tissue-paper-thin barrier between candidates and the super PACs that support them. Another example of super PACs bending the naming rules is pro-Carly Fiorina super PAC, originally named Carly for America. During the campaign, the FEC requested the group rename itself to avoid breaking the aforementioned name rule; in a clever move, the group changed to “Conservative, Authentic, and Responsive Leadership for You and For America” — which still reads CARLY for America.
The ruling only applies to the specific case involving Pursuing America’s Greatness, and could be overturned by the full Court of Appeals, or potentially appealed to the Supreme Court. (All three judges were appointed by Republican presidents). But the FEC is likely to suspend enforcement of this regulation until its legal status is resolved.
So, super PACs can’t coordinate, right? Well let’s take a look at what they can do.
A super PAC supporting, for example, Richard Skinner for Congress could solicit funds for a “Richard Skinner Is Great” program. It could operate a website entitled “I Like Richard Skinner.” Richard Skinner could attend the super PAC’s fundraisers, and even directly solicit donations up to $5,000 for the super PAC. The super PAC could be run by former staffers for Richard Skinner. Its advertisements could feature footage of Richard Skinner, taken from his campaign website. It could be established at the request of Richard Skinner or his associates, as long as Skinner had not yet entered the race. It could hire consultants who have worked for Richard Skinner. It could raise money from fundraising lists compiled by Richard Skinner’s campaign.
And, yet, the super PAC would be considered “independent,” and able to raise contributions of unlimited size, including from corporations and labor unions. This is only possible because the Supreme Court maintains the fiction that that there is no coordination between super PACs and the candidates they support. By allowing super PACs to invoke candidates’ names, the court has removed yet another layer of independence between outside groups and the politicians they support.