Lawrence Noble is general counsel at the Campaign Legal Center. He was general counsel of the Federal Election Commission from 1987 to 2000.
According to Hillary Clinton’s campaign Web site, “Hillary’s vision for America” includes “campaign finance reform” as an issue “she will fight for as president,” arguing that “we have to end the flood of secret, unaccountable money that is distorting our elections, corrupting our political system, and drowning out the voices of too many everyday Americans.”
These are inspiring words as our democracy devolves into a plutocracy where the wealthiest have the power to select who governs us. But they are hard to square with the way Clinton is running her campaign.
Like most of the major presidential candidates (Sen. Bernie Sanders and Donald Trump are exceptions), Clinton has a super PAC, Correct the Record, that can accept unlimited individual, labor and corporate contributions to pay for ads and other support for her campaign. The law requires a super PAC’s expenditures to be independent, not coordinated with a candidate, and super PACs must report the identity of their larger contributors. However, most candidates have taken advantage of the fact that some members of the Federal Election Commission refuse to enforce the laws requiring independence of super PACs, as well as disclosure laws more generally. The result is single-candidate super PACs acting as campaign surrogates and being independent in name only, while sometimes hiding the true source of their funding by accepting contributions from dark-money 501(c)(4) organizations that don’t publicly identify the sources of their funds.
Of course, most candidates and super PACs say they are following the law and not coordinating, no matter how ludicrous the claim appears in light of the facts. But according to Correct the Record, the super PAC and Clinton’s campaign have taken a new and different approach — actually claiming the right to coordinate.
Correct the Record is run by Clinton ally David Brock, who boasts that the organization directly coordinates with the Clinton campaign. How can this be? Brock and the campaign appear to believe that their lawyers have found a loophole in the FEC’s definition of “coordination.” Correct the Record says it can fully coordinate with the campaign as long as it communicates with the public only via the super PAC’s Web sites and not, for example, via TV and radio ads.
Many campaign finance lawyers, myself included, think no such loophole exists and that it is illegal for Correct the Record to spend money in coordination with the campaign. However, Team Clinton is seemingly playing the odds that the feckless FEC will never challenge it and that the public will not notice the campaign’s contribution to the destruction of our campaign finance laws. If so, the campaign’s willingness to pursue such a “loophole” tells us much more about Clinton’s attitude toward campaign finance reform than any speech or quote on her Web site.
It is admirable when a candidate rejects a legally permissible campaign activity because he or she believes it is wrong, such as by refusing to accept contributions from lobbyists or bundlers or by discouraging the formation of an independent super PAC. At the same time, it is not necessarily hypocritical to refuse to unilaterally disarm as long as a practice is legal and you conduct yourself in a lawful manner.
However, you start a quick slide down a slippery slope and begin to lose credibility as a champion of campaign finance reform when you follow the herd and claim independence from your super PAC while taking actions anyone in the real world would consider coordination, relying on a useless FEC and a 9-year-old’s “everyone is doing it” defense.
And you slam into the bottom of that slippery slope when you create loopholes that undermine the law. You have then become the leader of the herd in a stampede over what remains of our campaign finance laws.
Yet according to Brock, that is exactly what the Clinton campaign is doing. No presidential candidate claiming to have discovered a loophole to justify coordinating with a super PAC can make a credible claim that campaign finance reform is part of her “vision for America.” Clinton should either disavow the right to coordinate with Correct the Record or stop saying she wants to “end the flood of secret, unaccountable money that is distorting our elections, corrupting our political system, and drowning out the voices of too many everyday Americans.” It’s time for Clinton to correct the record.