How much can a candidate do for a Super PAC without illegally “coordinating” with it? Recent proposals would answer that she has to keep her distance—no publicly (or privately) stated support and no fundraising for the independent committee. A bit of a surprise has developed in the debate. While questioning how far these restrictions can go, Rick Hasen concludes that as a matter of constitutional law, Congress may prohibit the fundraising, and on this point, he sides in theory with Brad Smith of the Center for Competitive Politics. Richard L. Hasen, Super PAC Contributions, Corruption, and the Proxy War Over Coordination, Duke Journal of Constitutional Law & Public Policy (forthcoming), 16-17, available here; Bradley A. Smith, Super PACs and the Role of “Coordination” in Campaign Finance Law, 49 Willamette L. Rev. 603, 635 (2013). Rick Hasen and Brad Smith are not often found in the same jurisprudential company. So it is interesting to consider how they may have arrived there and why, in their judgments about the regulation Buckley would allow, they appear to have erred.
The two agree that coordination requires interaction or contact between the candidate and the committee, but not just any: the contact has to involve the committee’s strategy for achieving its goals. Hasen at 16 (“As … Smith persuasively argues, Buckley’s understanding of coordination focuses on coordination of campaign strategy.”) (emphasis in original). By urging financial support for the Super PAC, Hasen argues, the candidate “by definition” is coordinating “fundraising strategy.” Id. In linking his views to Smith’s, he cites Smith’s suggestion that the contact between candidate and donor presents a “bargaining opportunity” of the kind that gives rise to actual or apparent corruption. Hasen at 17; see also Smith at 635.
Hasen is correct that the candidate-committee contact must involve a matter of strategic significance, but Buckley is clear about just what kind of strategy the Court had in mind. It was the core organizational strategy for persuading voters; it was the independent committee’s control over that message and the means of communicating it. Because the candidate could not shape the content or the timing of a truly independent message, it might be of “little assistance,” or even be “counterproductive” to the candidate. This, in turn, would alleviate the dangers of quid pro quo corruption. Buckley v. Valeo, 424 U.S. 1, 47 (1976). Hence the difference between the contribution and the independent expenditure: the independent expenditure is fraught with the risk of failure, or worse, in advancing the candidate’s prospects. How the committee raises its money for persuasive speech has no bearing on this question of control.