That befuddled many campaign finance experts, who noted that super PACs, by definition, are political committees that solely do independent expenditures, which cannot be coordinated with a candidate or political party. Several said the relationship between the campaign and the super PAC would test the legal limits.
But Correct the Record believes it can avoid the coordination ban by relying on a 2006 Federal Election Commission regulation that declared that content posted online for free, such as blogs, is off limits from regulation. The “Internet exemption” said that such free postings do not constitute campaign expenditures, allowing independent groups to consult with candidates about the content they post on their sites. By adopting the measure, the FEC limited its online jurisdiction to regulating paid political ads.
The rules “totally exempt individuals who engage in political activity on the Internet from the restrictions of the campaign finance laws. The exemption for individual Internet activity in the final rules is categorical and unqualified,” then-FEC Chairman Michael E. Toner said at the time, according to a 2006 Washington Post story. The regulation “protects Internet activities by individuals in all forms, including e-mailing, linking, blogging, or hosting a Web site," said Toner, now a prominent Republican campaign finance attorney.
The pro-Clinton group plans to keep its activities within the bounds of the Internet exemption by disseminating information about Clinton on its Web site and through its Facebook and Twitter accounts, officials said. The group will be registered as a super PAC, but does not intend to spend any money on ads or other expenditures that would constitute independent political activity.
“The FEC rules specifically permit some activity – in particular, activity on an organization’s website, in email, and on social media – to be legally coordinated with candidates and political parties,” Adrienne Watson, a spokeswoman for Correct The Record, said in a statement. “This exception has been relied upon countless times by organizations raising non-federal money. The only thing unique about Correct the Record is that it is making its contributors and expenditures public.”
However, the FEC rules specify that online activities are exempted from campaign finance rules if they are conducted by "uncompensated" individuals, campaign finance lawyers noted. It is unclear how Correct the Record, whose staff will be paid, plans to navigate that restriction.
"The moment anyone is paid to engage in Internet activity it falls outside of that exemption," said Jason Torchinsky, an election law attorney who represents many conservative groups. "If you are a super PAC paying people and coordinating your activities with the campaign, you are not covered by the individual Internet exemption and are making impermissible in-kind contributions."
[Update: Correct the Record officials say they are not relying on the individual Internet exemption, but rather a related exemption in the definition of coordinated communications.]
Advocates for stronger enforcement of campaign finance rules said the group's maneuver around the coordination ban effectively circumvents the limits on how much individuals can give to candidates.
“The Internet exemption wasn’t meant for a political committee to raise unlimited money in coordination with a candidate,” said Larry Noble, senior counsel at the Campaign Legal Center. “It was meant for bloggers. It was not intended to be this massive operation where you are outsourcing your rapid response team.”
Fred Wertheimer, president of the advocacy group Democracy 21, said “it certainly looks like this new operation will violate the Bipartisan Campaign Reform Act, which prevents an entity set up by a candidate or acting on behalf of a candidate, from raising or spending unlimited contributions, or soft money.”
“In addition, if this entity is operating as a policy arm of the campaign, it will be violating the coordination laws if it raises and spends soft money, whether or not it runs ads or other public communications,” he added.
The move by Correct the Record, which was founded by Clinton ally David Brock, comes as former Florida governor Jeb Bush is building his own independent infrastructure of big-money groups to bolster his expected White House run. One such organization, the nonprofit Right to Rise Policy Solutions, is currently paying the salaries of several of his top aides-in-waiting, the Post reported this week.