The money-in-politics world recently witnessed a seemingly rare event: a government agency actually did something about super PACs that secretly and illegally coordinate with politicians to affect our elections.
Unfortunately, the wrong government agency acted. California’s version of the Federal Election Commission – the Fair Political Practices Commission – adopted new rules to tackle those supposedly shadowy groups that illegally coordinate with politicians in an effort to influence voters.
But lost in the chatter about stopping the influence of money in politics is that the FPPC has been eagerly and effectively tackling illegal coordination for decades and did not even need to update its rules. In stark contrast, it is the ever-dysfunctional FEC – without a significant enforcement case in years – that should act. Hopefully its chairwoman, Ann Ravel, takes a page out of California’s book to fix an ailing FEC. It was, after all, Ravel’s stewardship during her tenure as FPPC chair that curbed the vast majority of illegal coordination in California politics.
We are, of course, dealing with a post-Citizens United world where some politicians try to use “independent” super PACs to circumvent tight candidate contribution limits. The legal issue is relatively simple: Illegal coordination is similar to Wall Street-style insider trading. In order to enjoy unlimited money, super PACs must remain independent from candidates. But that independence vanishes the moment a candidate and super PAC share material, non-public information about the campaign – e.g., the timing of TV ad buys or the candidate’s campaign schedule – and then act on that information. The politician retains more control of campaign money, and donors get more access and influence. Conventional wisdom suggests that illegal coordination corrupts our politics.
The current crop of presidential candidates is pushing the boundaries of independence and facing few, if any, repercussions.
The wife of Sen. Ted Cruz, R-Texas – a close confidante and campaigner for her husband – makes daily fundraising calls to Cruz’s campaign donors and the super PACs supporting his candidacy. A former close adviser to Hillary Clinton operates a super PAC that is basically a first responder for Clinton missteps. Perhaps most shocking, prior to officially announcing for the presidency, Jeb Bush unabashedly raised funds for the super PACs that now directly support his candidacy. Because of the ineffectual FEC, nothing seems able to thwart these activities.
In the face of FEC paralysis, California’s FPPC stands apart. The FPPC – a leader in campaign finance policy – casts itself as a guardian of the gates, stamping out the corrupt politicians and special interests. Witnessing the excess of the presidential campaigns, the FPPC updated its illegal coordination regulations, the assumption evidently being that what’s happening at the federal level must be happening in California, too.
At first blush, the FPPC has challenged some pretty egregious activities. But the truth is that FPPC regulations dating back to the early 2000s already covered the type of activity the FPPC targets in its updated regulations. Because it has dealt with illegal coordination issues for years, the FPPC has developed a finely tuned and effective method for promoting compliance and policing illegal coordination.
Updated regulations or not, if the FPPC were in charge of federal elections, the current presidential candidates could not have gotten away with their antics. The FPPC has become quite potent because of its broad regulations and its active and aggressive enforcement. On both counts, the FEC badly fails to measure up.
Although the FPPC just passed an unnecessary regulation, the bigger picture is the FPPC’s longstanding effectiveness and the example it sets for the FEC. Political players in California are almost uniformly receptive to respecting the line between independence and corruption, and credit is due to the FPPC for so effectively promoting compliance across California.
Ultimately, if the FEC ever becomes serious about this issue, all it needs to do is ask Ravel how she made the FPPC the gold standard in stamping out illegal coordination and protecting our democracy.
Matthew C. Alvarez is an attorney with the Sutton Law Firm, practicing political and election law.