With the 2016 presidential campaign in full swing, pundits, reformers and the media are once again shining a light on the role of independent-expenditure-only committees, aka “super PACs,” in the American political process. Following the U.S. Supreme Court’s Citizens United decision in 2010, super PACs have become an increasingly prominent part of the campaign finance landscape because they may accept unlimited contributions — including contributions from corporations and labor organizations.

Under the Federal Election Campaign Act, 52 U.S.C. § 30101, expenditures by a person or organization in cooperation, consultation or concert with, or at the request or suggestion of, the agents of a federal candidate or that candidate’s authorized committee are deemed a contribution to the candidate’s campaign. These expenditures are subject to contribution limits imposed by federal law.

However, under the Citizens United decision, super PACs may raise unlimited sums from individuals, unions and corporations that are not subject to the federal contribution limits as long as the super PACs do not contribute to or coordinate with political parties or candidates.

The Federal Election Commission was established in the aftermath of the Watergate scandal and has exclusive jurisdiction over civil violations of federal election laws.  The Department of Justice has exclusive jurisdiction over criminal violations of those laws, which are misdemeanors when they are knowing and willful and involve amounts of more than $2,000 and felonies when they are knowing and willful and involve amounts of more than $25,000.

The DOJ completed its first successful prosecution of an alleged improper coordination between a campaign and a super PAC earlier this year in the U.S. District Court for the Eastern District of Virginia. The proceedings resulted in a prison sentence of two years for congressional campaign consultant Tyler Harber. 

Harber, 34, of Alexandria, Va., pleaded guilty to one count of coordinated federal election contributions and one count of making false statements to the FBI. As the government noted in a press release, Harber helped create and operate a supposedly independent super PAC even as he simultaneously managed a candidate’s 2012 congressional campaign.

According to the DOJ, “Harber admitted, among other things, that he made and directed coordinated expenditures by the PAC to influence the election with $325,000 of political advertising opposing a rival candidate.” Harber, who used aliases and admitted making multiple false statements to investigators, knew this coordination of funds was against the law.

Following this successful prosecution, commentators have speculated as to whether the Harber prosecution evidences an imminent federal clampdown on illegal campaign coordination. While this was the first federal prosecution of its kind, there are ample reasons to question whether the case signals the institution of more DOJ prosecutions.

High Evidentiary Hurdle 

The government’s announcement of the Harber case’s resolution included some tough talk, including: “‘The significant prison sentence imposed on Tyler Harber should cause other political operatives to think twice,” and “this case stands as an important step forward in the criminal enforcement of federal campaign finance laws.”

In its sentencing brief, moreover, the government cited the growing prospect of coordination-related crime in the wake of Citizens United and requested an prison sentence that would send a clear message to those who intentionally break campaign finance laws.

The government, in other words, appears eager to limit the impact of Citizens United by doing what it can to rein in super PACs. However, the DOJ was also quite frank about the difficulty of detecting and prosecuting improper coordination under the current evidentiary standard. Tellingly, the DOJ has emphasized the importance of self-reporting and whistleblowing.

And therein lies the rub 

By many accounts, Harber’s conduct was unusually blatant. He allegedly paid himself $9,000 as a commission and skimmed about $250,000 of contributed funds for personal use - including $138,000 paid to his mother’s company for work that was never performed and $118,000 for so-called personal expenses.

Harber’s own campaign colleagues reportedly supplied the FBI with all the information it needed to act. To use the vernacular, Harber was caught dead to rights.

But few coordination cases are so straightforward. Indeed, the need to prove that alleged violators “knowingly and willfully” broke the law makes the evidentiary standard in coordination cases particularly demanding. Campaign finance laws and regulations happen to be complex and technical, thus increasing the difficulty of proving knowing violations.

Need For Case Law 

Given these dynamics and the increasing sophistication of political fundraising, improper coordination prosecutions involving the 2016 presidential candidates seem highly unlikely — to say the least — despite the current media attention focused on this issue. Presidential candidates, after all, are typically well represented by teams of attorneys with extensive knowledge of campaign-finance laws and regulations. Practically speaking, their campaigns and loosely aligned PACs are far less likely to commit clearly defined, prosecutable violations.

At the congressional and state government level, in contrast, hundreds of ofteninexperienced candidates operate without the benefit of such extensive legal guidance. The blatant abuses that occurred in Harber are a case in point.

Thus, as federal authorities seek to target illegal coordination, the focus most likely will be on the abuses taking place at this lower orbit of the political process. By going after this “low-hanging fruit,” the DOJ may be able gradually to establish case law that addresses many unanswered questions regarding illegal coordination.

The fact that candidates and their campaign committees cannot direct or control funds from super PACs is well understood; what is far less clear is precisely what constitutes illegal coordination.

What, exactly, can and cannot be said during communications between campaigns and super PACs? Could a vague, suggestive “wink-wink” email from a campaign official related to a possible use of funds trigger a successful prosecution, or would more damning and direct communication be required?

Over time, if the federal government were to secure multiple convictions, the emerging case law could eventually make targeting substantive abuses at higher levels of the political process more likely. Gray areas could begin to be clarified.

Role of the FEC 

The FEC staff is charged with ensuring compliance with the federal election laws by reviewing the reports of political candidates and committees and referring apparent violations and reporting deficiencies to the commission for enforcement action. Outside individuals and groups may also file complaints with the FEC, and government agencies sometimes refer enforcement matters to the commission as well.

Typically, the commission seeks to reach consent agreements with violators by requiring them to pay civil penalties and take other remedial steps. When an agreement cannot be reached, the FEC may file suit in federal court. It also has the authority under the Federal Election Campaign Act to refer possible violations to the DOJ for criminal prosecution. Such referrals require a majority vote of the six commissioners in favor of “probable cause” of a “knowing and willful” criminal violation.

Complaints involving the 2016 presidential candidates are not likely to be referred to the DOJ for criminal prosecution. The FEC’s chief, Ann M. Ravel, has been quite frank about an impasse at the commission. The New York Times reported that Ravel went so far as to state that she has largely given up hope of reining in abuses in the 2016 presidential campaign due to a partisan stalemate among the agency’s six commissioners. “Some commissioners are barely on speaking terms, cross-aisle negotiations are infrequent, and with no consensus on which rules to enforce, the caseload against violators has plummeted,” the newspaper reported.

This long-standing impasse at the FEC represents another obstacle to those who would rein in what they perceive to be campaign finance abuses spawned by Citizens United.

Nevertheless, activists seeking to limit the scope of the Citizens United decision, as well as political partisans seeking to target rivals, will remain eager to file complaints about any conduct that smacks of improper coordination. In the months and years ahead, coordination likely will become an increasingly fertile ground — certainly in education and risk-management, and possibly in response to federal litigation — for attorneys who represent political and super PAC clients.

Risk-Management Strategies 

In representing political and super PAC clients, risk-management strategy should include extensive efforts to ensure fundraising operatives at all levels fully understand the imperative to maintain complete separation and independence with respect to the coordination of funds.

This is not simply a matter for the highest echelons of the organization. Indeed, the greatest risk of a violation might well lie with lower-level staffers who may seek to bend the rules in an effort to bolster their status.

For both super PACs and campaigns, a written coordination policy should detail the procedures for interaction and communication based on a reasonably conservative interpretation of the law. Likewise, the governance structure of these organizations should be designed to ensure that there is no impermissible overlap between campaign and super PAC staff. 

The DOJ, too, clearly will be on the lookout for violations. In addition, all communications between the two organizations should be thoroughly documented. These communications should be the responsibility of a select few designated individuals who have legal backgrounds or receive clear legal guidance.

Conclusion 

The Citizens United decision cleared the way for a major change in U.S. politics. Opponents of the ruling now seek to ramp up public pressure on the issue and are, to some extent, succeeding. For example, the new End Citizens United PAC, established in March 2015, aims to enact a constitutional amendment that would reverse the Supreme Court’s decisions in Citizens United and related cases by giving campaign-finance regulatory power to Congress and the states.

News media continue to cover these developments and to highlight the role of “big money” in politics. For example, recent coverage has highlighted how Republican presidential candidate Jeb Bush’s campaign finance report, filed in July, revealed $114 million in fundraising; of this, only $11 million was raised directly by his campaign, with the rest raised by a loosely affiliated Right to Rise super PAC.

Even President Barack Obama, a staunch opponent of Citizens United, recognized the advantages of super PACs and, during the 2012 campaign, acquiesced in implementing those resources. This increased public awareness and scrutiny clearly is part of the reason for the DOJ’s stated intent to focus greater attention on improper coordination between campaigns and the PACs that support them.

The difficult evidentiary standards in play suggest that it is too early to predict whether the Harber prosecution portends a significant change in federal enforcement. Nonetheless, the number of improper coordination and other campaign finance-related cases may well increase over time as federal prosecutors target the most obvious abuses, particularly at the congressional level. Political and super PAC clients should work with counsel to redouble their risk-management efforts in the midst of this greater scrutiny.