Opposing Unlawful Campaign Coordination Between Candidates and Super PACs — CLC v. Correct the Record and Hillary for America

In the 2016 elections, the super PAC Correct the Record (CTR) — notorious for its plans to “push back against” Hillary Clinton’s critics online — declared that it would coordinate its activities with Hillary Clinton’s presidential campaign, Hillary for America.

Under federal law an individual could only contribute $2,700 to Clinton’s campaign in 2016. However, as an “independent” super PAC, CTR could accept unlimited amounts from individual donors or corporations — as long as the super PAC did not coordinate with the Clinton campaign. If CTR’s spending was coordinated, the law would treat that spending as a contribution, since it would no longer be independent and would have had substantial value to the Clinton campaign.

Despite spending over $9 million on opposition research, campaign spokesperson training and booking, video production, press outreach, and other activities — many of which, by CTR’s own admission, were conducted in coordination with the Clinton campaign —the Clinton campaign never reported receiving in-kind contributions from CTR, and CTR never reported the activities as contributions.

In October of 2016, CLC filed a complaint with the FEC alleging that CTR had made, and the Clinton campaign had received, millions of dollars in illegal, unreported, and excessive in-kind contributions in the form of coordinated expenditures.

Following CLC’s complaint, the FEC’s general counsel recommended that the agency investigate the matter, but the FEC nonetheless deadlocked, voting 2-2 on whether to follow the recommendation of its career attorneys.

CLC sued, arguing that the FEC’s dismissal of the complaint was “arbitrary, capricious, and an abuse of discretion, and otherwise contrary to the law.” After several years of litigation, the district court held that the FEC had acted contrary to law in dismissing CLC’s complaint. The court ordered the FEC to conform with its decision within 30 days, but the FEC refused to do so.

Upon the FEC’s decision not to conform with the court order, CLC filed this citizen suit against CTR and the Clinton campaign under a provision of the Federal Election Campaign Act that authorizes private suits in these circumstances.

CLC’s lawsuit asks the court to declare that CTR and the Clinton campaign violated the Federal Election Campaign Act and order them to provide CLC and the FEC with the information it illegally concealed regarding the millions of dollars of in-kind contributions the super PAC and campaign made and received.

What’s at Stake?

The Commission’s failure to hold CTR and the Clinton campaign accountable for up to $9 million in coordinated spending creates a loophole that would allow many millions of dollars of over-the-limit contributions to flow from outside groups to federal candidates. Furthermore, the in-kind contributions the super PAC made to the Clinton campaign were unreported, concealing the campaign’s sources of financial support from public scrutiny.

This citizen suit takes on the job that the FEC failed to do: to crack down on coordination between purportedly independent super PACs and the campaigns they seek to subsidize, and to shine a light on the illegal and often undisclosed contributions that result from such schemes.