Democracy 21 Sent Letter to Attorney General Today to Supplement January 10th Letter that Raised Serious Questions about the Legality of the Presidential Candidate-Specific Super PACs
Democracy 21 President Fred Wertheimer Report sent by Democracy 21 to the Attorney General that raised serious questions about the legality of five leading presidential candidate-specific Super PACs.
Today’s letter was sent “to supplement the information contained in the Report and to provide information on a sixth candidate-specific Super PAC, the Red, White and Blue Fund supporting the presidential campaign of former Senator Rick Santorum.”
According to today’s letter:
Importantly, the new information shows that, in two cases, there are individuals who are involved directly and simultaneously in a presidential candidate’s campaign and also with the candidate-specific Super PAC supporting that candidate.
According to the letter, an article by Ken Vogel in POLITICO (January 12, 2012) states:
Foster Friess recently made a $1 million donation to the Red, White and Blue Fund, the Super PAC supporting the Santorum campaign.
The article indicates that Friess is materially involved in the decisions by the Super PAC about how it is to spend his money. According to the 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.’”
The same article makes clear that Friess has close and ongoing connections to the Santorum presidential campaign and, in fact, is part of Santorum’s personal entourage.
The letter states that the POLITICO article:
shows that a billionaire donor who made a $1 million contribution to a candidate-specific Super PAC supporting former Senator Santorum and is involved in the spending decisions of that Super PAC is, at the same time, actively campaigning with Santorum as part of his official campaign and is in direct, personal contact with the candidate
The letter further states:
The same article sets forth similar facts about the relationship between the presidential campaign of former Governor Jon Huntsman, Jr., his father, Jon Huntsman, Sr., also a billionaire, and Our Destiny PAC which is a candidate-specific Super PAC supporting the Huntsman presidential campaign.
The letter states that the POLITICO article:
indicates that John Huntsman, Sr., a major donor (and possibly the principal donor) to the Super PAC supporting presidential candidate Huntsman – in this instance, the presidential candidate’s own father – “communicates daily with his son” and is actively campaigning with him.
The letter further states:
Thus, Mr. Freiss and Mr. Huntsman are each major donors to a candidate-specific Super PAC and at the same time each is directly involved in the presidential campaign of the candidate supported by the Super PAC and each is in direct contact with the candidate.
These facts raise serious questions about whether these Super PACs and the presidential campaigns supported by the Super PACs are complying with the key requirement of the campaign finance law that the Super PAC’s expenditures and activities be conducted independently from the candidate’s campaign.
The letter states:
The Supreme Court has spoken in the broadest terms about the degree of independence that is necessary for “independent expenditures” to be considered free of the restrictions that would otherwise apply to what would be in-kind contributions. Such expenditures must be “totally independent,” Buckley v. Valeo, 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 statute reflects these broad standards and provides that if expenditures are “made by any person in cooperation, consultation or concert with, or at the request or suggestion of” a candidate or agent of a candidate, they are coordinated, not independent, expenditures and “shall be considered to be a contribution to such candidate,” and therefore subject to the limitations and prohibitions that apply to contributions. 2 U.S.C. § 441a(a)(7)(B)(i).
Absent the “totally,” “wholly” and “truly” independent activity required by Supreme Court decisions and the campaign finance laws, the expenditures by a Super PAC would constitute in-kind contributions to the presidential candidate.
As such, they would be subject to the $5,000 per year contribution limit applicable to political committees making contributions to a federal candidate. Needless to say, the multi-million dollar amounts being spent by the presidential candidate-specific Super PACs would be in violation of this limit. Further, the huge donations being given to the Super PACs would violate applicable contribution limits as well.
The letter concludes:
We urge you and the Justice Department to review this new information along with the Report we sent you on January 10th and to closely monitor the activities of the presidential candidate-specific Super PACs in the 2012 presidential election. We also urge the Department to conduct investigations, where appropriate, to ensure that the campaign finance laws are not being violated by presidential candidate-specific Super PACs.
