In the discussion of Super PACs, seemingly different concerns tend to intermingle or become fused together, creating confusion. Most obvious is the continuing disagreement about whether candidate support for an independent committee, particularly fundraising, results in “coordination.” Some argue—some propose an amendment to the law to provide—that a candidate’s public endorsement of a committee, including but not limited to appeals for funds, is coordination. Another view distinguishes among Super PACs and would subject single-candidate committees to stricter coordination than others. The issue might be easier to follow if it were made clear that there are two regulatory objectives, close in nature but not the same, running through the arguments about the impact of candidate fundraising for an independent committee. One goal is to keep officeholders and candidates from soliciting “soft money”—money in unlimited sums and without restriction in source—and, in consequence, placed in a position rife with the potential for corruption. The other is to determine whether a Super PAC, as a result of coordination with a candidate, is limited in its spending. The “coordinated” spending is, of course, a contribution and must comply with dollar limits. Not so the spending that remains an “independent expenditure.”
The similarity of the objectives is obvious. If an expenditure turns out to have been coordinated, and therefore a contribution, the candidate may have received a benefit in excess of the dollar limits established to protect against corruption. So we have the threat of such corruption here, just as in the case of the candidate who solicits funds directly for a Super PAC. But the corruption, actual or in appearance, materializes in different forms: in one case, through the independent committee as contributor, and in the other, through the donor solicited for the contribution to the committee.
The consequences of regulation in the two cases are still more different. Where the candidate has solicited the money directly from the donor, one-on-one, the candidate and the donor are joined together, sole parties to what Brad Smith calls a potentially corrupting “opportunity for bargaining.” The independent committee then receives the money, but only then, and it can proceed independently from that point in designing, producing and choosing the timing for a communication on behalf of the candidate. If the prior solicitation is deemed an act of coordination, then the committee becomes liable after the fact for an illegal contribution and is unable to claim independence from the candidate in making any subsequent expenditure.
Full Article: Super PACs and the Confusion of Regulatory Objectives –.