The Federal Election Commission has quietly given the green light to federal candidates who want to solicit contributions for super PACs by meeting in small groups — so small that there can be just two other people in the room.
In addition, the little-noticed advisory opinion gives permission to a candidate’s campaign consultant and other aides to solicit large donations for a super PAC, as long as they make clear that they are not making the request at the direction of the candidate.
The decisions — which came in response to a request from two Democratic super PACs, including one with close ties to Senate Minority Leader Harry M. Reid (D-Nev.) — further erode the boundary between campaigns and their independent allies at a time when they are already engaged in unprecedented collaboration.
Federal candidates are still not permitted to explicitly ask a donor to give more than $5,000 to a super PAC. But the latest decision means that an elected official or candidate can meet privately with just one wealthy donor and one super PAC operative to discuss fundraising for the group, said Ellen Weintraub, one of two Democrats on the six-member panel who opposed loosening the rules.
All that is required under the guidelines is a written invitation, a formal program and a disclaimer that the candidate is appearing as a “special guest” who is not soliciting large checks.
“This is actually very dangerous if you’re worried about corruption, the notion that these kind of small back-room meetings can take place,” Weintraub said. “The fewer people you have in the room, the fewer protections you have against something unsavory happening.”
But Republican Commissioner Lee Goodman, who supported the change, said the decision on candidate interaction was in keeping with more than a decade of past FEC opinions, including a unanimous one supported by Weintraub in 2011 that allowed candidates to attend super PAC fundraisers. He said the panel was responding to a question “about bona fide events, complete with invitations and venues and proper disclaimers, not about private tete-a-tetes and unlawful solicitations.”
In the November advisory opinion, the commission also took steps that could restrain potential candidates from leaning on their well-funded outside allies while they prepare for a run.
The changes come during a campaign cycle when presidential candidates are interacting with their outside allies like never before, pushing the boundaries of rules prohibiting direct coordination. Ahead of announcing his 2016 bid, for example, former Florida governor Jeb Bush (R) helped raise more than $100 million for Right to Rise, a super PAC supporting him. Hillary Clinton’s campaign is collaborating directly with Correct the Record, a super PAC providing the Democratic front-runner’s team with opposition research.
The two Democratic groups that sought the latest changes were House Majority PAC and Senate Majority PAC, which is run by strategists with close ties to Reid. The groups filed a request in September for guidance on a dozen current super PAC practices, saying that until they were definitively resolved, candidates and political committees would be in “a state of legal limbo.”
“We had watched Republicans reportedly test out new approaches to super PAC activity and wanted the FEC to provide clear guidance on these activities,” said Shripal Shah, a spokesman for Senate Majority PAC.
By a 4-to-2 vote, the FEC gave permission for a candidate to attend small gatherings of super PAC donors and allowed “agents” of a candidate to solicit large super PAC contributions.
Steven Walther, the lone independent on the panel, joined with the three GOP commissioners to approve the activities. He declined to comment.
Democratic appointee Ann Ravel, who is ending her term as FEC chairwoman, said that by blessing such activities, the commission “makes a mockery of the rules that the candidates can’t coordinate and fundraise for super PACs.”
“Now they explicitly have a green light, even those who might have been resistant to the temptation until now,” she said.
Marc Elias, a lawyer for the Democratic super PACs, noted that the panel did not change the rules — it merely offered guidance on how to operate under the current regulations.
“If the majority of the commission believes something is legal, then it’s a good thing that people know what is legal,” he said, adding: “I don’t think anyone benefits from a lack of clarity or a lack of certainty.”
Fred Wertheimer, president of Democracy 21, an advocacy group that seeks stricter limits on campaign fundraising, said the advisory opinion conflicts with Congress’s intent to keep candidates from seeking massive contributions.
“All the FEC has done in 2015 is further pervert and undermine the campaign finance laws,” he said.
On the other hand, the panel did conclude that some interplay between potential candidates and well-funded outside groups was out of bounds.
The commission unanimously agreed that individuals who decide to run for office cannot cover their exploratory activities with political committees set up under Section 527 of the tax code and financed by large donations. That opinion might have limited the activities earlier this year of presidential contenders such as Wisconsin Gov. Scott Walker (R) and Louisiana Gov. Bobby Jindal (R), who were bolstered by such groups before declaring their candidacies.
The panel also said that an individual officially becomes a candidate once he or she has spent more than $5,000 and makes a private determination to run. That ruling could make it harder for prospective candidates to lay substantial groundwork for a campaign while maintaining publicly that he or she is still undecided, as Bush did.
But the FEC, which is riven by a deep ideological divide, deadlocked on several other significant questions, including whether a super PAC can spend money on behalf of an individual who helped form the group before becoming a candidate. The commission also could not agree whether an individual can share information about the needs of their prospective candidacy with a super PAC before officially entering a race.
It is unclear when the agency will offer any guidance on such activities. Last week, at its final meeting of the year, the commission could not agree on whether to update its coordination regulation to address super PACs.
Veteran campaign finance attorneys said there is an urgent need for the commission to lay down a clear set of comprehensive rules about what interaction between candidates and independent groups is permissible since the Supreme Court transformed the fundraising landscape with its 2010 Citizens United v. FEC decision.
“What people want more than anything else is some certainty and some predictability, and now the best they can do is rely on a pattern of hands-off behavior in a number of enforcement matters,” said Larry Norton, a former FEC general counsel who represents corporations, advocacy groups and super PACs on both sides of the aisle. “The rules desperately need to be refreshed and reflect the world we’re in now.”
The narrowly drawn coordination regulation currently on the books was approved in 2010, when super PACs were still a novelty. Goodman said the rule went through extensive reworking in response to legal challenges.
“Some people want the coordination doctrine to carry more weight then the courts have said it can bear,” the Republican appointee said. The First Amendment guarantees that candidates and their outside allies can have “some interaction in the normal give-and-take of the political playing field,” he said.
Caroline Hunter, another Republican on the panel, said that the FEC has yet to determine whether any of the coordination complaints filed this year have merit.
“There’s this notion that everyone is out there coordinating,” she said. “There’s nothing that we’ve decided that shows evidence of coordination.”