James Bopp Jr., the conservative election lawyer who had asked the FEC's advice, hailed the FEC opinion as a free speech victory. The ruling means that "candidates may send out e-mail letters praising and endorsing a super PAC in the most glowing terms and soliciting contributions to it, so long as it contains a disclaimer" stating that the request is for hard money only, Bopp said in a statement at the time.
That's just what worries campaign finance reform advocates, who fret that super PACs will put lawmakers back in the business of raising the large, unrestricted contributions known as soft money. The McCain-Feingold law banned soft money fundraising in 2002. But lawmakers who speak at super PAC fundraising events may trigger soft money donations with a wink and a nod — even if they technically ask only for $5,000, reformers warn.
"It certainly looks like a way for big donors to dodge the contribution limits," said Tara Malloy, associate counsel at the Campaign Legal Center. She pointed to a recent analysis by the center and two other watchdog groups that found that almost three-quarters of the donors to a super PAC that is friendly to GOP presidential hopeful Mitt Romney also gave the legal maximum to Romney's campaign.
"These groups don't seem to be independent in any real sense of the word," Malloy said. Reform advocates have repeatedly challenged the FEC's definition of coordination between PACs and campaigns as too narrow. Moreover, a second FEC advisory opinion request may pave the way for even cozier relationships between lawmakers and the super PACs that promote them.
The request was triggered by a series of ads that the Nebraska Democratic State Central Committee produced in conjunction with Sen. Ben Nelson (D-Neb.). Nebraska Republicans complain that the ads amount to illegal coordination between Nelson and the state Democrats.
The GOP-friendly super PAC American Crossroads has now asked the FEC whether it may run similar ads — effectively opening the way for lawmakers or candidates to work hand in hand with American Crossroads organizers to prepare political messages.
"What we're asking the FEC is whether or not the type of coordination that took place between Nelson and the Democratic Party would be allowable and extended to third-party groups like American Crossroads," said the group's communications director, Jonathan Collegio. "If they determine that it is, then that is a new avenue of advocacy that we would pursue."
If the FEC does clear the way for super PACs to create ads with their favorite candidates, the already-thin firewall that now separates Members of Congress from big money donors will further crumble. And super PACs will undoubtedly become even more popular on Capitol Hill.
"I think this is the wave of the future," said former Cantor aide John Murray, whose new super PAC will promote conservative messages and candidates using Cantor's Young Guns theme. "I think that my organization is on the cutting edge of how policy debates and issue debates will be driven in the future."
Clarification: Oct. 18, 2011
An earlier version of the story indicated that Speaker John Boehner (R-Ohio) had said he would not raise money for super PACs.