Fred Wertheimer op-ed: Bush Super PAC Scheme Would Violate 2002 Campaign Finance Law
Reuters
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.
An individual-candidate super PAC supporting Senator Rand Paul (R-Ky.) is being run by his former campaign manager, who is also married to Paul’s niece.
An individual-candidate super PAC supporting the governor of Wisconsin, Republican Scott Walker, is being run by his former chief of staff and campaign manager for his 2010 gubernatorial campaign, assisted by the campaign manager who ran Walker’s 2014 re-election race.
An individual-candidate super PAC supporting Senator Marco Rubio (R-Fla.) is led by a political operative who co-founded a political consulting firm with another political operative leading Rubio’s federal leadership PAC.
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.
After the 1996 presidential election, political donor Johnny Chung said, “[T]he White House is like a subway: You have to put in coins to open the gates.”
Chung was describing the campaign finance scheme that President Bill Clinton used in his 1996 re-election race to improperly launder unlimited contributions, or soft money, through the Democratic National Committee to support Clinton’s campaign. The scheme became a national scandal.
Chung himself gave $366,000 in soft money contributions to the Democratic committee. He received 49 visits to the White House.
Congress ended the corrupt soft money system in 2002 by banning soft money contributions to the national parties and prohibiting federal officeholders from soliciting them.
Now, however, the “coins to open the gates” of the White House are back. And another potential national scandal is unfolding.
This time it is individual-candidate super PACs instead of the political parties that are being used as the vehicles for laundering unlimited contributions into presidential campaigns.
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.
