"It's illegal, as far as we're concerned," said Democracy 21 President Fred Wertheimer, who has asked the Department of Justice to investigate. Wertheimer has sent the DOJ and other agencies numerous complaint letters about presidential super PACs, including Priorities USA Action, Restore Our Future, the Red White and Blue Fund and Winning Our Future.
The Supreme Court has spelled out that independent expenditures must be "totally independent," "wholly independent" and "made without any candidate's approval (or wink or nod)" in rulings going back to Buckley vs. Valeo in 1976, Wertheimer said. But he said enforcement is the problem.
The FEC has struggled for a decade to write coordination regulations that would stand up in court. The 2002 Bipartisan Campaign Reform Act ordered the FEC to tighten its coordination rules, but the commission's regulations were repeatedly thrown out in court, and reform advocates remain dissatisfied. Political players would essentially have to explicitly discuss ads and strategy with their backers to meet the FEC's current coordination definition, election lawyers say.
"The chief fundraisers travel with the candidates and appear onstage with the candidates but presumably don't talk about the one thing the FEC regulation prohibits, which is the actual content of the ad and where it should be run," election lawyer and former FEC Chairman Trevor Potter said at a recent Brookings Institution forum on the rise of super PACs.
Jan Baran, an election lawyer at Wiley Rein said if the rules weren't clear and carefully tailored, they wouldn't withstand constitutional challenge — especially in light of the Supreme Court's Citizens United ruling.
"The definition of independence doesn't require complete political ignorance or chastity," said Baran, who advises super PACs, though none that back specific candidates. "You cannot restrict the rights of people to engage in political expression by making them completely disassociated from politics, candidates or the political process."
That helps explain why super PAC organizers say they're not tracking the frequent complaints against them. Super PAC officials may share vendors, fundraising events and a history with the candidate — but they say all of it is legal.
"The FEC allows me to meet with donors, Newt [Gingrich] to meet with donors," said Becky Burkett, a longtime fundraiser for the former Speaker and president of Winning Our Future, the super PAC supporting the Georgian. "So it's not a violation, nor is it coordination."
Former White House aide Bill Burton, a senior strategist for Priorites USA Action, which reportedly hosted Obama political adviser David Plouffe at a West Coast fundraising event recently, sounded a similar note.
"I'm not going to respond to every letter and statement that groups put out," he said. "But I will say that we scrupulously follow all the rules and are well-aware of the laws and are making sure that we operate well within them."