Democracy 21 Calls on Justice Department to Investigate Whether Super PACs Supporting Obama and Romney are Engaged in Massive Campaign Finance Violations
In a letter sent today to Attorney General Eric Holder, Democracy 21 President Fred Wertheimer requested an investigation “by the Justice Department into whether the candidate-specific Super PACs associated with President Obama and presidential candidate Mitt Romney are engaged in massive violations of the campaign finance laws.”
“Democracy 21 believes that the Super PACs supporting President Obama and presidential candidate Romney are violating the law and need to be held accountable,” according to the letter from Wertheimer.
The letter noted the Justice Department’s “jurisdiction and responsibility” to enforce the laws, and stated, “It is essential for the Department to enforce the campaign finance laws in order to protect the integrity of our elections and the interests of the American people.”
According to the letter:
Last week, President Obama’s campaign announced that it would send Cabinet members, White House staff and campaign officials to speak at, and participate in, fund raising events for Priorities USA Action, the allegedly “independent” candidate-specific Super PAC supporting President Obama’s re-election. Days later, the Romney campaign announced that its senior campaign aides would similarly appear and speak at fundraising events for Restore Our Future, the allegedly “independent” candidate-specific Super PAC supporting Mitt Romney’s campaign.
These announcements of plans by both the Obama and Romney campaigns for further direct entanglements with the respective Super PACs supporting their campaigns present compelling new evidence that these two Super PACs are engaged in illegal activities.
Democracy 21 has sent two previous letters and a Democracy 21 Report on Super PACs 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:
The activities of the Obama and Romney Super PACs and the presidential campaigns they support have escalated beyond the boundaries of the campaign finance laws. The Obama and Romney campaigns are making a mockery of the campaign finance laws enacted to prevent corruption.
In light of recent developments, the idea that the Obama and Romney presidential campaigns and the Super PACs supporting them are operating independently from each other is absurd and has no public credibility.
The claim that an FEC regulation and an Advisory Opinion allowing candidates and their agents to solicit federally limited contributions at a Super PAC fundraiser permits the coordinated fundraising activities announced by the Obama and Romney campaigns is wrong. The rules that prohibit coordination are not superseded by the rules regarding solicitations and we believe the coordination rules clearly prohibit the coordinated fundraising activities recently announced by the Obama and Romney campaigns.
According to the letter, there are two FEC regulations that implement the coordination prohibitions in the statute and the announced activities by the Obama and Romney campaigns fail to comply with the statute and each of these regulations.
The letter states:
The open collaboration that is now occurring between the Obama campaign and the candidate-specific Super PAC supporting the Obama campaign cannot plausibly be said to meet the statutory standard that activities by a supposedly independent group cannot be “in cooperation, consultation or concert with, or at the request or suggestion of” a candidate, a candidate’s campaign committee or any agent of the candidate or his campaign. 2 U.S.C. §441a(a)(7)(B)(i).
Nor can such close and direct interactions between a candidate’s campaign operatives and a candidate-specific Super PAC supporting that candidate plausibly be said to meet the standard set by the Supreme Court that “independent” spending must be “totally independent,” Buckley, 424 U.S. at 47; “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 states that the same holds true regarding the open collaboration between the Romney campaign and the candidate-specific Super PAC supporting the Romney campaign,” according to Wertheimer
According to the letter:
Although the premise of these candidate-specific Super PACs is that they are operating “independently” of the presidential candidate they support, the web of ties and connections between the Super PACs and their respective candidates is in clear contravention of the standard for independence established in multiple Supreme Court decisions and in the federal campaign finance statute.
The Supreme Court, in decisions going back to Buckley v. Valeo (1976), has described the standard for “independent spending” as requiring such spending to be “totally independent,” “wholly independent,” “truly independent” and operating “without any candidate’s approval (or wink or nod).”
Recent published reports demonstrate that the requirement for Super PACs to be “totally independent” from the presidential campaigns they support is being breached in a flagrant and willful fashion.
According to the letter:
The announcement by the Obama campaign that it will actively collaborate with Priorities USA Action, and the parallel announcement by the Romney campaign that it will actively collaborate with Restore Our Future, both represent an alarming and dangerous escalation of the threat posed by candidate-specific Super PACs to eviscerate the limits on contributions to candidates that were enacted to prevent corruption.
The letter states:
Some observers have expressed a mistaken assumption that a different FEC regulation, and a 2011 FEC advisory opinion based on it, authorize the activities announced by the Obama and Romney campaigns, because they allow a federal candidate (and the agents of such candidate) to “attend, speak or be a featured guest” at a fundraising event held by a group raising non-federal funds. See 11 C.F.R. §300.64; Ad. Op. 2011-12 (Majority PAC).
However, the regulation and advisory opinion do not supersede the statutory prohibition on coordination between a candidate and an outside group that is devoted exclusively to spending money to promote that candidate’s campaign.
Nor do they authorize participation by a candidate or the candidate’s agent in a fundraising event for an outside group where that participation would constitute prohibited coordination between the candidate and the outside group with regard to campaign spending by the outside group for the benefit of that candidate.
In particular, the advisory opinion does not address the situation here, where the candidate or his agents is participating in fundraising events for an outside group that is devoted exclusively to promoting the election of that candidate.
It is one thing for a candidate to “appear, speak or be a featured guest” at an event held by a group dedicated to supporting a range of other candidates, the situation addressed in the advisory opinion. It is something very different for a candidate to appear at an event for a group dedicated to supporting only that candidate’s election, and for the candidate or his agents to discuss his campaign plans, campaign message, campaign prospects or campaign activities with that group. Neither the regulation nor the advisory opinion purports to allow this kind of coordination between a candidate and an outside group supporting only that candidate.
The letter further states:
In our earlier letters, we noted regarding the Super PACs supporting Mitt Romney and President Obama that “it strains credulity to believe that the presidential candidate-specific Super PACs were established without some formal or informal involvement or signoff by the presidential candidates being supported or their campaigns or agents.”
We further noted that any such involvement would mean that future expenditures by the Super PAC were made in coordination with the campaign under the coordination provisions in the statute. A candidate cannot create or encourage the creation of a Super PAC and then claim the future operations of the Super PAC are taking place independently of the candidate.
The letter states:
This assertion in our earlier letters is supported by recent evidence with regard to the Romney Super PAC. In a published report dated January 17, 2012, Governor Romney said that he “encouraged the creation of a Super PAC.”
This statement indicates that the Restore Our Future PAC was set up with the “approval” of, and with a “wink and nod” from, Mitt Romney who expressed his “encouragement” for the creation of the Super PAC established to undertake spending on behalf of his presidential campaign.
Democracy 21 believes the role played by Mitt Romney in the formation of the candidate-specific Super PAC supporting his campaign means the Super PAC does not and cannot operate independently from the Romney campaign, within the meaning of the law and Supreme Court decisions.
The letter also states:
In addition, Mitt Romney reportedly has recently talked to and met with a multimillion dollar donor to the candidate-specific Super PAC supporting New Gingrich.
According to a recent report, Mr. Romney had a telephone conversation two weeks ago with Sheldon Adelson who, with his wife, has reportedly given $10 million to Winning Our Future, the candidate-specific Super PAC supporting former Speaker Newt Gingrich.
According to another report, Governor Romney subsequently met with Adelson in Nevada on February 3, the day before the Nevada caucus.
Federal candidates are prohibited from soliciting unlimited contributions. These reports raise serious questions about whether the Romney phone call to Adelson or his meeting with Adelson involved any explicit or implicit request by Romney for Adelson to make unlimited contributions to Restore Our Future. Such questions should be investigated by the Justice Department.
According to the letter:
Meetings between a presidential candidate or the candidate’s agents, and donors, or potential donors, of unlimited contributions to the Super PAC supporting that candidate contravene the purpose of the prohibition on coordination.
As the Supreme Court in Buckley discussed, it is the “absence of prearrangement and coordination of an expenditure with the candidate” that “not only undermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.” Id. at 47 (emphasis added).
When a presidential candidate or his agents meet directly with large donors to the Super PAC supporting that candidate, or with a donor whose support that candidate is seeking, the “danger” that unlimited contributions will be given to the Super PAC “as a quid pro quo for improper commitments from the candidate” is at a zenith.
The letter concludes:
We strongly urge the Justice Department to carefully review the new information we are submitting today along with the information we have previously provided.
We strongly urge the Justice Department to promptly open an investigation into the candidate-specific Super PACs supporting the Obama and Romney campaigns to determine whether they are engaged in violations of the nation’s campaign finance laws.
