Democracy 21 Calls on Justice Department to Investigate Whether Candidate-Specific Super PAC Supporting Santorum Is Engaged in Campaign Finance Violations
In a letter sent today to Attorney General Eric Holder, Democracy 21 President Fred Wertheimer called for an investigation by the Justice Department “into whether a candidate-specific Super PAC supporting former Senator Rick Santorum is engaged in violations of the campaign finance laws.”
The letter states that the Justice Department has “has the jurisdiction and responsibility to enforce the nation’s campaign finance laws.”
The Democracy 21 letter follows a letter sent by the organization last week on February 15, 2012 requesting a Justice Department investigation into whether the candidate-specific Super PACs supporting President Barack Obama and presidential candidate Mitt Romney are engaged in violations of the campaign finance laws.
Democracy 21 also sent letters to the Justice Department on January 10 and January 13, 2012 expressing the organization’s serious concerns about the legality of the activities being undertaken by candidate-specific Super PACs.
According to Democracy 21 President Fred Wertheimer:
It appears that presidential candidate-specific Super PACs are routinely violating the requirement of the campaign finance law for outside spending by a group to be “independent” from the campaign of the candidate it is supporting. This requirement of “independence” is the linchpin of the Citizens United decision that struck down the ban on corporate expenditures in federal campaigns.
The Supreme Court’s misguided decision in Citizens United is based on the erroneous concept that ‘independent spending’ cannot be a corrupting influence on a federal officeholder or government decision. But if the outside spending is routinely being coordinated with candidates, then even under the flawed rationale of the Citizens United decision, such coordinated spending is illegal under existing campaign finance law and Supreme Court decisions.
It is incumbent on the Justice Department to investigate these matters, rather than allow what appear to be illegally coordinated expenditures to run wild in the 2012 federal elections. The Federal Election Commission certainly cannot be counted on to carry out its responsibility to enforce the campaign finance laws, given the ideological opposition to the laws by three of the six Commissioners who consistently block efforts by the professional staff to enforce the laws.
Someone in this country must be prepared to enforce the nation’s campaign finance laws enacted to prevent the corruption of our government.
According to the Democracy 21 letter sent today to the Justice Department:
Our January 13 letter noted that one wealthy donor, Foster Friess, had reportedly made a $1 million donation to the Red, White and Blue Fund, the candidate-specific Super PAC supporting the presidential campaign of former Senator Santorum.[1] According to an FEC report filed by the Super PAC, Friess contributed $669,000 to the Super PAC during the period January 1, 2012 through January 31, 2012, bringing his total contributions to the PAC to $1 million.
According to published reports cited in the letter, Friess has been materially involved in discussions with the Super PAC about the campaign ads the Super PAC was running to support Santorum. According to one article, Friess “said he’s told the operatives running the Super PAC that ‘any money that I’m connected to, I want the ads to be dignified, and I want them to be honest. I’m fine with contrast ads, but I’m very, very adverse to some of the ads that I think are destructive.’”[2]
Our letter noted that, at the same time, Friess had been actively campaigning with Santorum as part of his campaign entourage.
The letter further stated:
Subsequent press reports since our January 13 letter provide additional evidence of the dual role played by Friess in connecting the Santorum campaign to the candidate-specific Super PAC supporting Santorum. One published report on February 13, 2012 noted that Friess is a member of Santorum’s “inner circle” and had participated in discussions about the campaign’s ads:
Friess has become part of Santorum’s campaign inner circle, traveling with the candidate on the trail and participating in sensitive conversations about campaign advertising. Santorum told reporters last week that Friess is “someone who I talk to, who gives me plenty of advice on how I say it and what I say.”[3]
The letter stated:
Another published report on February 9, 2012, noted that Friess had provided suggestions to the campaign about media strategy. The report stated:
Foster Friess, the primary funder of the pro-Santorum Super PAC “Red, White and Blue Fund,” travels with the inner circle of the campaign; he has given suggestions to advisers about media strategy; and on Friday, he will introduce the presidential hopeful at the Conservative Political Action Conference. The relationship between Friess and the campaign he supports is one of the clearest examples of how candidates are pushing the limits of the only rule governing their relationship with Super PACs – no coordination.[4]
The letter cited additional published reports and stated:
As these reports make clear, Friess is in close contact with Santorum, provides campaign advice to Santorum, is part of the candidate’s “inner circle,” serves as a key adviser to the candidate and his campaign, and has participated in discussions about campaign ads with the candidate or his aides.
At the same time, press reports have indicated Friess is the major donor to the principal candidate-specific Super PAC supporting Santorum, the Red, White and Blue Fund, and has advised, given recommendations to and attempted to influence the Super PAC regarding the content of the ads it is running in support of Santorum.
Friess has stated that he does not talk to Santorum about the activities of the Super PAC, but that observation misses the point. In serving as a close adviser to Santorum, in participating in discussions with Santorum and his aides about the campaign and in participating in discussions with the campaign about ads and media strategy,Friess clearly has obtained information about campaign strategy, campaign plans and campaign activities that is material to the Santorum campaign. The Politico story noted that “Friess has been privy to sensitive campaign business, including fundraising figures. . . .”[5]
In a situation where Friess is the primary donor to the Super PAC making expenditures for Santorum’s benefit, and where Friess himself has stated that he advises the Super PAC about the content and tone of its ads, the Super PAC is not operating independently of the Santorum campaign. As a matter of law, the expenditures by the Super PAC are being made “in cooperation, consultation, or concert, with, or at the request of suggestion of” a candidate or his agents. 2 U.S.C. § 441a(a)(7)(B)(i).
According to the letter:
The circumstances surrounding the inter-connected relationship of Friess with Santorum and the Santorum campaign, on the one hand, and with the Red, White and Blue Fund Super PAC on the other warrant a Justice Department investigation into whether the Santorum campaign and the Red, White and Blue Fund Super PAC violated the prohibition on coordination in the campaign finance law.
The letter stated:
More generally, Friess’ status as the principal donor as well as an adviser to the candidate-specific Super PAC supporting Santorum, while he is simultaneously a member of the Santorum campaign’s inner circle of advisers, cannot plausibly be said to meet the standard set by the Supreme Court that “independent” spending must be “totally independent,” Buckley, 424 U.S. 1, 47 (1976); “wholly independent,” McConnell v. FEC, 540 U.S. 93, 221 (2003); “truly independent,” id., and made “without any candidate’s approval (or wink or nod)….” FEC v. Colorado Republican Federal Campaign Committee, 533 U.S. 431, 442 (2001).
The letter also called on the Justice Department to investigate whether a second Super-PAC supporting Rick Santorum has violated the campaign finance laws:
The report in Politico also discussed a specific instance in which Friess and Santorum were reportedly involved with a supposedly “independent” effort that was apparently coordinated with the Santorum campaign. According to the Politico report [K. Vogel, February 13, 2012]:
Behind the scenes, Friess has been even more important to Santorum’s effort.
Days after influential Iowa conservative leader Bob Vander Plaats gave his coveted endorsement to Santorum in the run-up to his state’s caucuses, his organization established Leaders For Families Super PAC, which quickly took in $125,000 – almost all of its cash – from Friess, and a pro-Santorum super PAC called the Red, White and Blue Fund, for which Friess is the biggest donor.
Leaders For Families used the cash to air radio and television ads and place automated telephone calls touting the endorsement from Vander Plaats, who had reportedly told Santorum he “needed money to promote the endorsement.”
The Vander Plaats endorsement and promotion thereof “was world changing,” Friess told POLITICO. Id.
The letter continued:
Thus, after Vander Plaats reportedly told Santorum that he needed money to publicize his endorsement of Santorum, Friess reportedly gave money to a Super PAC set up for the purpose of publicizing Vander Plaats’ endorsement of Santorum. To the extent Friess worked in conjunction with the Santorum campaign in funding the Vander Plaats Super PAC and its activities, the expenditures by this Super PAC were made “in cooperation, consultation, or concert, with, or at the request of suggestion of” a candidate or his agents, and thus, in violation of the law prohibiting coordination. 2 U.S.C. § 441a(a)(7)(B)(i).
According to the letter:
The circumstances surrounding the relationship between Santorum, Friess, Vander Platts and the Vander Platts Super PAC warrant a Justice Department investigation into whether the Santorum campaign and the Vander Platts Super PAC violated the prohibition on coordination in the campaign finance law.
The letter concluded:
Democracy 21 strongly urges the Justice Department to promptly open an investigation into the the Red, White and Blue Fund Super PAC and the Santorum campaign in order to determine whether this Super PAC has engaged in violations of the nation’s campaign finance laws. We also strongly urge the Justice Department to promptly open an investigation into the the Vander Platts Super PAC Fund and the Santorum campaign in order to determine whether this Super PAC has engaged in violations of the nation’s campaign finance laws.
[1] K. Vogel, “3 billionaires who’ll drag out the race,” Politico (Jan. 12, 2012).
[2] K. Vogel, “3 billionaires who’ll drag out the race,” Politico (January 12, 2012).
[3] K. Vogel, “Super PACs echo parodies,” Politico (Feb. 13, 2012) (emphasis added).
[4] A. Rafferty, “Major Super PAC donor’s public role with Santorum campaign,” NBC News (Feb. 9, 2012) (emphasis added).
[5] K. Vogel, “Super PACs echo parodies,” Politico (Feb. 13, 2012).
