Professor Rick Hasen lists as his “questionable quote of the day” a quote not questionable at all.
The quote, taken from a timely op-ed by FEC Chairman Caroline Hunter in the Washington Times, is that “SuperPACs may not coordinate with any candidate.” Hasen says the quote should say: May not “illegally coordinate” with any candidate, but that much is understood.
These days the reform community, of which Professor Hasen is in sympathy if not a member, is making any argument to denigrate the freedom from regulation provided by the Citizens United and SpeechNow.org opinions.
It is true that Hasen lists factors that demonstrate a parallel interest between the candidate and the SuperPAC, in much the same way there is parallel interest in Oprah’s endorsement and President Obama.
Presumably, both want roughly the same policy outcomes and believe that comes about by electing the right candidates.
Call Chairman Hunter, the Courts and I sticklers, but that is called “democracy,” not coordination.
Still, let’s take Hasen’s tedious barbs one by one.
First, Hasen says “a federal candidate may solicit funds for a super pac (but not ask for unlimited sums).” True enough. This is because McCain-Feingold’s soft money ban still prevents candidates from soliciting funds above hard dollar limits, not because soliciting funds creates coordination that can result in a contribution from the SuperPAC to the candidate. The ability to solicit is protected by the right of association.
Second, Hasen says “the candidate may appear in a SuperPAC’s ad” well before the election, then he admits that the question is open; “pending before the FEC.” Both are true. But they are true because the FEC regulates coordinated “expenditures” and “electioneering communications” that occur inside elections, not coordinated "anything." For this, Hasen should blame the reformers, who had to curtail the definition of the electioneering communication because the Supreme Court limited the term expenditure to speech containing “express advocacy” in 1976.
Third, Hasen says that “a candidate may use footage from a super pac in his own ads.” True enough—and utterly beside the point: No one worries whether federal candidates are subsidizing the speech of independent Super PACs by recycling it.
Fourth, in a bid to make the reader squirm, Hasen says “that a super pac may be made up of a candidate’s former campaign manager, his father, his best friends, and his former co-workers.” Keep in mind that under the regulations former campaign managers and former co-workers cannot have been on the candidate's payroll recently enough to have their understanding of what a candidate needs said to the public to get elected. And while the hearts of a candidate's father or best friends are probably in the right place, their political skills are nil and as likely to damage campaign as help it. If Dad hires a consultant to guide him, regulation keeps him from knowing the candidate’s plans. If Hasen is arguing that both father and friend forfeit their rights to spend money independently in an election his son has entered, I’d like to see the reasoning under the First Amendment.
I’ll skip Hasen’s fifth barb; it is too similar enough to his fourth.
And last, Hasen says SuperPACs don’t have to meaningfully report. This argument needs to be unwound: too many reformers are indulging in it. Individuals that give money to a group for independent speech must be reported. This requirement is right out of the opinion in SpeechNow.org. The wrinkle comes from Citizens United, which rightly allowed corporations to spend their treasury funds on independent political communications. What, then, would Hasen have these corporations report? The disclosure of both the purchasers and purchase price of a Ford Fusion or F-150? And how the funds from that transaction resulted in dues paid to a trade association that decided to exercise its speech rights in an election?
Stephen M. Hoersting is counsel at DB Capitol Strategies, and was co-counsel to plaintiffs in the case creating the nation’s first SuperPAC, SpeechNow.org v. FEC.