But the boldest proposal comes from Sen. Mike Lee (Utah), a freshman Republican who wants to add a super PAC component to his leadership PAC, the Constitutional Conservatives Fund. The Federal Election Commission is set to consider the request during a meeting Thursday.
The idea would allow Lee to raise unlimited funds from corporations and wealthy individuals as head of the super PAC, then spend the funds to help other Republicans. It would mark another step toward unraveling campaign-finance restrictions that generally require outside groups to act independently of candidates.
“The Constitution simply does not permit the government to suppress free speech by restricting the right to make” independent expenditures, Dan Backer, Lee’s lawyer, wrote in a request for a legal ruling by the FEC.
Lee’s chances don’t look good, however: The FEC posted a draft advisory opinion last week that would deny the request, concluding that the arrangement would clearly run afoul of federal election laws. No other advisory opinions were released, suggesting that a majority of FEC commissioners may be ready to shoot down Lee’s request.
Democracy 21 President Fred Wertheimer, a supporter of campaign regulations, said the case should be “open and shut” for the FEC. “The federal campaign finance laws clearly and unequivocally prohibit the leadership PAC of a member of Congress from soliciting or receiving unlimited contributions,” Wertheimer said in a news release opposing Lee’s request.
Even if the FEC rebuffs Lee, the mere existence of the proposal shows how rapidly the landscape has changed when it comes to regulating election spending. After a 2010 Supreme Court ruling allowed corporations to spend unlimited amounts of money on elections, candidates and political strategists have been pushing the legal envelope to see how far they can go in throwing out the old restrictions.
In a second proposal up for FEC debate Thursday, American Crossroads, a conservative super PAC, is asking whether it can produce advertisements featuring federal candidates and officeholders, a practice that has not previously been sanctioned.
It’s unclear how the FEC might rule, but even a 3-3 partisan deadlock could be viewed as a green light by groups seeking to coordinate more closely with the candidates they support. Such a development would further muddy the patchwork of regulations for political ads.
On Wednesday, the Majority PAC, a super PAC focused on helping Senate Democrats, began airing a television spot in support of Sen. Ben Nelson (D-Neb.), who is weighing whether to run for reelection in 2012. Republicans have complained about previous ads by the Democratic Party featuring Nelson, saying that they violate restrictions on candidate-specific ads by political parties and outside groups.
The number of super PACs focused on congressional candidates has begun to mount in recent months. Strong Utah PAC, created in September, aims to help Hatch fend off any tea party challengers, while a group called the Valley-Israel Alliance formed in November to help Berman hold onto his newly redrawn House district.
Another group of PACs with ties to lawmakers has sprung up to help multiple candidates, such as Majority PAC, which was formed by former aides to Senate Majority Leader Harry M. Reid (D-Nev.).
Former Minnesota senator Norm Coleman (R) has launched the Congressional Leadership Fund super PAC, which will focus on preserving the Republican majority in the House. A former top aide to House Majority Leader Eric Cantor (R-Va.) launched a super PAC in October called YG Action Fund, named for Cantor’s “Young Guns” conservative recruitment effort.
Brett G. Kappel, a campaign-finance lawyer at Arent Fox, said the emerging system is rife for abuse because the FEC rarely seeks to enforce rules prohibiting coordination between candidates and independent groups.
“Given that enforcement is non-existent, bad actors will be tempted to cross the line and use corporate funds to run ads that have been coordinated with candidates,” Kappel said.