This is the season of the presidential superPACs: They flooded Iowa with attack ads, and now they are looking ahead to primaries in South Carolina and Florida.
SuperPACs (political action committees) can solicit big, corporate contributions — something candidates can't do. And, according to the law, superPACs are barred from coordinating their ads with the candidates they support. But it's not nearly that simple.
A SuperPAC Attacks
Take the superPAC Restore Our Future. It blanketed Iowa for a month before the Republican presidential caucuses with ads tearing down former House Speaker Newt Gingrich.
In the whole barrage of ads, there was only one small hint of the candidate these ads were for — and you had to listen carefully.
In a spot ridiculing Gingrich's "mistakes," a narrator rattled off a list: "immigration, Medicare, health care, Iraq, attacking Mitt Romney and more."
That's right: Restore Our Future is the superPAC for former Massachusetts Gov. Mitt Romney. And it was doing what superPACs do best — trashing the opposition while letting the candidate keep his distance.
The consultants who run Restore Our Future declined to comment Friday.
But Gingrich has been railing at Romney to stop the attacks.
There's this myth that somehow there's a 'wink-wink, nod-nod' between the campaigns and the PACs, and I just haven't seen it.
"This is a man whose staff created the PAC, his millionaire friends fund the PAC, he pretends he has nothing to do with the PAC — it's baloney. He's not telling the American people the truth," Gingrich said on CBS last week.
Gingrich is suggesting that the Romney campaign and Restore Our Future violated federal regulations against illegal coordination.
Debate Over The Ban
The point of the regulations is that candidates run their campaigns on capped and disclosed contributions. And they shouldn't be able to run a backdoor operation with big, unregulated money.
The coordination ban dates back to the 1990s, long before the Supreme Court handed down the Citizens United decision in 2010 and paved the way for presidential superPACs.
There's a never-ending debate over whether the ban has teeth and whether the Federal Election Commission really enforces it.
As Cleta Mitchell, a longtime campaign finance lawyer for conservative causes and candidates, puts it: "There's this myth that somehow there's a 'wink-wink, nod-nod' between the campaigns and the PACs, and I just haven't seen it."
Mitchell's current clients include one of the superPACs supporting Texas Gov. Rick Perry.
Romney says he can't tell Restore Our Future to stop the ads, even if he wants to.
"If we coordinate, in any way whatsoever, we go to the big house," he explained on MSNBC last month.
Mitchell says if she were advising a candidate or a campaign, "I would say to them, 'Don't you ever comment publicly about anything the superPAC is saying. Don't ever say a word about it.' "
But not everyone agrees.
They need to be worried about coordination. The question is: What definition of coordination do they need to be worried about?
"I think a candidate is safe in making a public comment that they disavow a superPAC's ads, and they wish the superPAC would not do those ads," says Larry Noble, a former FEC general counsel now in private practice.
A Murky Issue
Now, there's also a superPAC for Gingrich. It's called Winning Our Future — as opposed to the Romney-supporting PAC, Restore Our Future.
Political strategists nowadays say superPACs are a basic element in a presidential campaign.
The senior adviser to Winning Our Future is Rick Tyler, a former aide to Gingrich. Tyler says the PAC takes its lead from Gingrich — but not in secret. So it's not coordination.
"What we can do is listen to the campaign and listen to the candidate through the media and determine what the campaign is doing, what the strategy is and echo that strategy, thus expanding the campaign," he says.
Mitchell says, "If it's in the public domain, it's fair game for the superPAC."
But she says she also tells her clients: "If you're going to be politically astute, what you probably should do is not try to mirror the campaign, but do your own research, your own poll and be able to say, 'Look, we made our own decision based on our own independent determination.' "
The coordination issue is such a mess, Noble says candidates and superPACs get a mixed message.
"They need to be worried about coordination," he says. "The question is: What definition of coordination do they need to be worried about?"
And the reality is that it's hard to prove coordination.
So Romney probably wouldn't have to worry about a trip to the big house.
In fact, it's a long reach back in time — years, actually — to the last case of coordination in which the FEC assessed a penalty.
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