Jeb Bush delivers a final blow to campaign finance regulation

Ed Kilgore at the Political Animal blog comments on Rick Hasen’s piece at Slate. Final Blow to Campaign Finance Regulation?

A lot of observers read about Jeb Bush sending his chief political strategist Mike Murphy off to run his Super-PAC and thought something fundamental, and fundamentally wrong, was happening. But election law expert Rick Hasen has put it all into perspective: this is the next-to-last step before the complete abandonment of any pretense we there are limits on political giving. Hasen adds a key element to our understanding of what Bush is doing: aside from letting the Super-PAC become his de facto campaign organization, Jeb is willing and able during this extended period of alleged non-candidacy to openly coordinate with, and raise money for, said Super-PAC, which means anybody can write him a check for unlimited dollars.

“Jeb’s making a mockery of the few rules left.” Rick Hasen explains in Jeb the Destroyer:

In February, the Campaign Legal Center, a group which works on campaign finance reform issues, released a “white paper” contending that many of the leading potential presidential candidates were likely breaking federal law by not declaring their candidacy or setting up a “testing the waters” committee for a presidential election run. Such a declaration, among other things, limits donors to giving only $2,700 to the (would-be) candidate for the presidential primary season. It was an excellent report, but many shrugged off its findings as just one more way in which the campaign finance system has begun to unravel since the Supreme Court’s Citizens United decision.

The news this week that Republican (pseudo-non)candidate Jeb Bush intends to outsource much of his campaign to an allied super PAC reveals that Bush’s decision to delay declaring his candidacy has allowed him to undermine one of the last rules in campaign finance law. Worse, his approach will be the new model of presidential funding in future elections and greatly increases the threat that large donors will have even greater influence over electoral and policy outcomes than they already have.

The idea that Jeb Bush is not “testing the waters” for a presidential run is absurd. He is appearing at presidential candidate forums, traveling to early primary and caucus states, and leading the Republican field in fundraising.

While Bush isn’t alone in delaying his formal campaign announcement and the rules that go with it, he has created unprecedented connections with the “Right to Rise” super PAC, whose sole purpose appears to be the election of Bush as president.* The Sunlight Foundation reported that Bush has already headlined 47 events for his super PAC, with five more events this week. And the Associated Press reported that once Bush becomes a candidate, he plans to outsource many of the core functions of his campaign to Right to Rise, including expensive television advertising and direct mail.

To understand why this development is so troubling, we need to go back a few years to the emergence of super PACs and the argument for why these groups are allowed to accept unlimited contribution limits to support candidates for office.

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In Citizens United, the Supreme Court held that independent spending by corporations and others could neither corrupt a candidate nor lead to the appearance of corruption. When spending is truly independent, the court declared, the absence of coordination prevented corruption. In litigation and administrative action after Citizens United, federal courts and the Federal Election Commission allowed PACs that did not make contributions to candidates to accept unlimited sums from individuals, corporations, unions, and others. The theory was that if independent spending cannot corrupt, then contributions to fund that independent spending couldn’t corrupt either.

The theory rests on the idea that the candidate and the super PAC aren’t coordinating their strategies. While a candidate can support a super PAC and even ask people to give money to it, the candidate and the PAC cannot agree on campaign strategy, such as what ads to run and where. This in theory makes giving to the super PAC less valuable to the candidate because the super PAC might act at cross-purposes with the candidate’s campaign.

That theory is thin to begin with—super PACs are valuable because they have already proven adept at following a candidate’s lead without formal coordination—but Bush’s campaign strategy has completely undermined it. Because Bush claims he is neither a candidate nor even seriously considering a presidential run, the anti-coordination rules don’t apply to him.  He can talk about future campaign strategy all he wants and set the Right to Rise robot to work once he declares his candidacy.

More importantly, by participating in literally dozens of fundraisers for Right to Rise during a period when donors know he can fully direct what it does, donors know the best way of gaining influence over Bush (and the chances for influence with a future Bush administration) is by giving money to the group—lots of it.

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By signaling that Right to Rise is his campaign arm, Jeb Bush has broken down the wall between his super PAC and his campaign committee in the eyes of donors. Preventing coordination and preserving independence was one of the last walls that were left.

The next step will be simply handing $1 million checks to candidates. Right now that’s still illegal, but campaign finance opponents will challenge those candidate contribution limits as ineffective since (the Bush campaign will show) super PACs can serve almost the same purpose. Indeed, campaign lawyer Jim Bopp (the brains behind the Citizens United lawsuit) signaled as much this week, arguing that the way to take unaccountable money out of politics is to let individuals give whatever they want directly to candidates.

Bush is more than lying about his intentions to become a presidential candidate. He’s undermining what little law we have left to stop the super wealthy from having even greater influence over our elections and politics. It’s something to consider as Jeb Bush gets his audition before the Koch brothers, who have promised to have their network spend up to $889 million on the upcoming elections.

Fred Wertheimer from Democracy 21 explains in an op-ed Why Jeb Bush’s super PAC plan is potentially illegal:

Former Florida Governor Jeb Bush is preparing to push the role of the individual-candidate super PAC to new, brazen heights.

The Bush campaign is reportedly planning to reverse the role of Bush’s campaign committee and the “independent” super PAC supporting him – so that the super PAC would essentially become Bush’s campaign committee.

The reason for this audacious move is simple: super PACs can be funded with unlimited donations, while a candidate’s campaign is limited to contributions of $2,700 per donor per election. A relatively small number of millionaires and billionaires could pay for Bush’s race for the 2016 Republican presidential nomination.

The only problem is that the Bush scheme, as reported, would be illegal.

Under a little-noted provision of the Bipartisan Campaign Reform Act of 2002, if a candidate or officeholder or their proxies is directly or indirectly involved in “establishing, financing, maintaining or controlling” an outside entity, like an individual-candidate super PAC, it is illegal for the super PAC to receive or spend contributions that exceed the limit on contributions to a federal PAC of $5,000 per donor per year.

The provision also applies to the direct or indirect involvement by a candidate or officeholder or their proxies in any super PAC “acting on behalf of” the candidate or federal officeholder.

Bush launched his federal leadership PAC at the same time his “allies” announced a super PAC to support him. A Bush campaign finance lawyer is a key organizer of the “independent” super PAC. Bush is traveling the country helping to raise huge amounts of unlimited contributions for the super PAC. The Bush leadership PAC and the Bush super PAC have almost identical names: the Right to Rise PAC and the Right to Rise Super PAC.

There is also a non-profit group with a similar name, Right to Rise Policy Solutions, that was formed by a Bush friend and former staffer. This group will allow Bush supporters to make anonymous contributions.

According to an AP report, “One reason Bush’s aides are comfortable with the strategy is because Mike Murphy, Bush’s longtime political confidant, would probably run the super PAC once Bush enters the race.”

These are factors that demonstrate Bush and his proxies are and will be directly or indirectly involved in establishing, running and financing the super PAC. Thus, these factors support a conclusion that the Bush super PAC is covered by the 2002 legislation and therefore that it is and will be violating the law in receiving and spending contributions of more than $5,000 per donor per year.

Though the Bush campaign spokesperson states that Bush is not yet a candidate — a claim that has been challenged — in any event once Bush formally declares his candidacy the provision of the 2002 law would immediately kick in.

The U.S. Supreme Court’s disastrous Citizen United decision paved the way for individual-candidate super PACs, which are vehicles for donors and the presidential candidates they support to evade the candidate contribution limits enacted by Congress to prevent corruption.

Every serious 2016 presidential candidate has or will likely have an individual-candidate super PAC supporting his or her campaign. These super PACs are being set up and run by the candidate’s close associates or political operatives. The candidates themselves, and their proxies, are fundraising for the super PACs.

While the myth is being spun that the activities of these super PACs are separate from the presidential candidates they support – to comply with the Citizens United decision – the reality is they are tied at the hip to their respective presidential campaigns, as shown by the super PAC supporting Bush and others.

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The idea that these and other individual-candidate super PACs will conduct their activities independent of the presidential candidates they support is a farce.

My organization, Democracy 21, along with the Campaign Legal Center, plans to challenge individual-candidate super PACs supporting presidential candidates that are not complying with the law.

We plan to file complaints against the super PACs at the Federal Election Commission, even though we know the agency is paralyzed because three of the six commissioners consistently refuse to enforce the campaign finance laws since they oppose them.

We also plan to go to the Justice Department, where appropriate, to ask for criminal investigations of individual-candidate super PACs.

Early this year, the Justice Department obtained the first criminal conviction ever involving illegal coordination between a congressional campaign and a super PAC supporting the campaign. Following the conviction, the department issued a statement saying, “The Department of Justice is fully committed to addressing the threat posed to the integrity of federal primary and general elections by coordinated campaign contributions, and will aggressively pursue coordination offenses at every appropriate opportunity.”

The Justice Department needs to make that commitment a reality and to similarly enforce the   prohibition on direct or indirect involvement by candidates or their proxies in individual candidate super PACs supporting them.

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Presidential candidates and their individual-candidate super PACs must be held accountable for any brazen violations of the campaign finance laws during the 2016 presidential election.

The next president should not start off his or her presidency as a massive law breaker.

Too late.