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Why does any of this matter? While the Court in Citizens United struck down limits on independent expenditures, the Court has for decades recognized that expenditures “coordinated with the candidate and his campaign might well have virtually the same value to the candidate as a contribution and would pose similar dangers of abuse.” In the landmark 1976 Buckley v. Valeo decision, the Supreme Court concluded that “all expenditures placed in cooperation with . . . a candidate” are contributions subject to limits. Yet the Tokaji and Strause report makes clear that hundreds of millions of dollars have been spent by outside groups since Citizens United, in cooperation with candidates, but not in compliance with the $2,600 contribution limit.
The problem lies not in the “coordination” statute passed by Congress, but in Federal Election Commission’s ineffective regulations and lax enforcement. Since 1976, the Federal Election Campaign Act has provided that “expenditures made by any person in cooperation” with a candidate “shall be considered to be a contribution to such candidate.” Yet, as Tokaji and Strause accurately report, the FEC has allowed widespread cooperation between candidates and outside groups.
It is time for the FEC to tighten up its “coordination” regulations—to bring the legal definition of coordination in better alignment with the common sense meaning of the word. For example, the FEC should prohibit candidates from fundraising for groups making “independent” expenditures in the candidate’s race. In doing so, the FEC would be following the lead of the Minnesota Campaign Finance & Public Disclosure Board, which earlier this year interpreted its state’s statute’s use of “cooperation” to include fundraising.
Until the FEC acts, the relationships between candidates and so-called “independent expenditure” groups will only grow stronger, with the unlimited corporate, union and individual funds being raised and spent by such groups posing a serious threat of corruption. The unlimited political spending unleashed by Citizens United is likely here to stay until the composition of the Supreme Court changes. But in the meantime the FEC has the obligation to ensure that the spending is “truly,” “totally” independent, as envisioned by the current Court.
Paul S. Ryan is senior counsel at the Campaign Legal Center.