Campaign Craziness

The Next Era of Campaign-Finance Craziness Is Already Underway

By JIM RUTENBERG

There may be no political adviser closer to Rand Paul than Jesse Benton. Benton was integral to Paul’s Senate run in 2010 and was a top strategist for both of Ron Paul’s Republican presidential campaigns. When a fellow Kentuckian, Senator Mitch McConnell, needed help with his re-election campaign last year, Rand Paul lent him Benton. Benton also happens to be married to Paul’s niece. So it would have been natural to expect Benton to move into Paul’s campaign headquarters as soon as he declared his candidacy for president.

Not going to happen. On April 6, the day before Paul made his formal announcement, National Journal reported that instead, Benton will be running with several others America’s Liberty PAC, the principal Paul-supporting super PAC — the class of technically independent campaign organization that is free to spend as many millions of dollars as it can raise, without all those nettlesome regulations that limit donations to formal presidential campaigns to $5,400 a person.

Then there is the longtime Jeb Bush adviser Mike Murphy. Murphy guided Bush through the rocky shallows of early-stage presidential politics and helped manage Bush’s successful push to lock down most of the Republican Party’s top donors for the 2016 race, effectively sidelining Mitt Romney and hobbling Chris Christie. Not long ago, it would have been taken as a given that Murphy would join Bush’s formal campaign once it was announced — but people close to the campaign expect he will join Bush’s super PAC, Right to Rise, instead. And Gov. Scott Walker’s former campaign manager and chief of staff, Keith Gilkes, announced late last week that he would not be joining Walker’s formal campaign but rather Walker’s super PAC, Unintimidated PAC — this in spite of legal investigations into Walker’s aides’ interactions with outside conservative groups.

All these moves point to the next stage in the great unraveling of the presidential campaign-finance system. And they make the few remaining prohibitions against coordination between these “independent” groups and campaigns look trifling, if not absurd.

Outside groups have played influential roles in presidential races for decades. Forerunners of the super PAC include groups like the National Security Political Action Committee, which produced the “Willie Horton” ads against Michael Dukakis in 1988, and the Swift Boat Veterans for Truth, which in 2004 brought false charges that John Kerry lied about his Vietnam War record. That same year, the Democratic-aligned groups America Coming Together and the Media Fund tried to help Kerry with get-out-the-vote operations and campaign ads attacking President George W. Bush.

These groups at least maintained the appearance of distance from the campaigns they were seeking to help, and strategists for those campaigns often complained — with varying degrees of sincerity — that the PACs hurt as much as they helped with their distracting, off-message hit jobs. And in 2004, the Federal Election Commission did fine several outside groups for violating campaign-finance rules.

But after the Supreme Court’s decision in the 2010 case Citizens United v. Federal Election Commission and other higher-court rulings, super PACs, as they were now called, were free enough to raise and spend unlimited dollars in federal campaigns that Mitt Romney and President Obama officially sanctioned such groups to operate on their behalfs, and even helped them raise money. These super PACs included some former advisers, but the groups still operated in supporting roles, largely sticking to producing and running television ads.

But nobody of Benton’s or Murphy’s prominence within their respective candidates’ circles has been dispatched from the beginning to run an outside group before. This year’s exodus to super PACs suggests that the real action is moving further away from the traditional campaigns — and further outside the decades-old regulatory system devised to insulate politics from the potentially corrosive influence of moneyed interests. “We’re certainly looking to be more sophisticated,” Benton told me last week. “In the past, super PACs ran a lot of TV. We want to run a very, very data-driven, technologically forward, integrated ad campaign with digital ads, direct mail, television, radio and boots on the ground, should fundraising allow.”

Although Hillary Clinton is relying for now on a consortium that seems to be operating on the old, supporting-role model, it’s hard to imagine that Republicans will have a monopoly on this newly aggressive use of super PACs for long. It is not inconceivable that the major sanctioned PACs on both sides will assume important strategic functions traditionally handled by political parties and campaigns, which would be left to content themselves with candidate-specific duties like speechwriting, dealing with the press, travel arrangements, nominating conventions and the handful of campaign ads that require the direct participation of the candidate.

There are still some laws barring coordination between campaigns and outside groups, and those laws carry criminal penalties. But there is an important loophole: There is no obvious prohibition against a prospective candidate’s speaking with aides about how a super PAC and a campaign could work in tandem before the F.E.C. has recognized him or her as a candidate. If there’s no campaign, there’s nobody to coordinate with, right?

And even after a candidacy is declared, strategists are free to leave campaigns for super PACs as long as they don’t communicate with the colleagues they are leaving behind for 120 days — the idea being that whatever strategic intelligence they take with them to the super PAC four months later will be too stale to use. But of course, nothing is keeping them and their campaign colleagues from gaming out different election scenarios, and how a super PAC could be most helpful in each of them, in advance — and many of the new crop of super PAC advisers know their candidates well enough to anticipate how they would want to react to a given situation.

Still, candidates may find that dispatching their best hands to helm super PACs has its downsides. For instance, Bush’s adviser Murphy is a reliable political sherpa on whom Bush has come to rely in moments of need; Bush won’t be able to turn to him for counsel if Murphy is at the super PAC. And if the fight for the 2016 Republican nomination proves as unstable and unpredictable as 2012’s — which was in part a consequence, as it happens, of unfettered super-PAC spending — there are likely to be plenty of campaign plot twists that no strategist could anticipate. “I can tell you, in 2012 we did not have any scenario for Herman Cain being a front-runner right before Thanksgiving,” says Carl Forti, an adviser who left the Romney camp to help run his Restore Our Future super PAC in 2011. But there is so much money available to outside groups now that it is worth the risk.

Are we stuck with this system? Is there any point in maintaining what scraps of campaign-finance regulation remain? I put the question to Fred Wertheimer, the longtime advocate for stricter campaign-finance regulations at the group Democracy 21. Wertheimer argued that the F.E.C. still has the legal grounds to crack down on candidate-affiliated super PACs. He pointed to language in the campaign-finance law that not only prohibits candidates from raising money outside the federal limits but also bars any “entity directly or indirectly established, financed, maintained or controlled by or acting on behalf” of the candidates from doing the same.

Super PACs formed by former aides and with the candidate’s express endorsement would certainly fall in the latter category, Wertheimer argued — including those that operated on behalf of Romney and Obama in 2012, none of which the F.E.C. punished. “What is going to happen is the system is going to be stretched and tested, and more blatantly violated because 2012 was Round 1, and there was no enforcement,” he told me. “Everyone is going to think they can get away with brazen violations of the law and other brazen activities in 2016.”

Richard Briffault, a professor at Columbia Law School who specializes in campaign finance, has argued that the only real solution is a new set of regulations that directly address the formation of candidate-specific super PACs. But this is a pretty grim proposition; the F.E.C. is so gridlocked that its members couldn’t even agree on whether to serve bagels or doughnuts in celebration of its 40th anniversary this year, as The Wall Street Journal reported last week. And Congress is, well, Congress. “In the current world,” Briffault conceded when we spoke last week, “it’s not going to happen — the F.E.C. is not going to pass any rules, and Congress is not going to pass any laws.”