Ten Years After Potter’s Interview on Colbert’s Show, Illegal Coordination Still Pervades

Trevor Potter and Stephen Colbert's Super PAC
Image courtesy of Comedy Central

Trevor Potter, president of Campaign Legal Center (CLC), first appeared on the “Colbert Report” to educate the public about political action committees (PAC) on March 30, 2011. One of the issues brought to light in his series of appearances was how easy it is for candidates and super PACs to illegally coordinate campaign spending.

A decade later, not much has changed. Across the political spectrum, campaigns and super PACs are still going unpunished when they deliberately work together to spend money on behalf of their preferred candidate. This is due in large part to dysfunction at our nation’s only federal elections watchdog agency, the Federal Election Commission (FEC).

To reduce political corruption, we need a stronger FEC to enforce campaign finance laws and hold political candidates and their donors accountable.

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Because coordinated spending is just as valuable to candidates as direct contributions, coordination between outside spenders and their preferred candidates must be strictly policed to prevent big donors from indirectly bankrolling their preferred candidates while sidestepping contribution limits. 

Undetected coordination erodes the accountability to everyday voters that we need from our elected officials. 

Currently, campaign finance law prohibits outside groups from coordinating with candidates’ campaigns to make expenditures. The FEC has also ruled that super PACs cannot make direct contributions to candidates. Nonetheless, every election cycle reveals new instances of super PACs and candidates working hand-in-glove.

Yet the FEC has never fined a super PAC for coordinating with a campaign.

The reason that no one has been held accountable for these violations is because Commissioners opposed to the FEC’s core mission have taken over the agency.

The FEC has six Commissioners, and the votes of four of those Commissioners are needed for it to write new rules or take any substantiative action on enforcement matters. This means that any three Commissioners can paralyze the agency if they choose.

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In the mid-2000s, congressional opponents of campaign finance regulation began to prioritize the recommendation and confirmation of FEC Commissioners ideologically opposed to campaign finance laws and their enforcement. Since then, the FEC has gone from deadlocking infrequently on key enforcement matters to deadlocking a majority of the time.

Candidates and groups have unabashedly taken advantage of the resulting lack enforcement. They have solicited money for the organization making the expenditure, appeared as a featured guest at fundraising events, made expenditures based on nonpublic information or employed a former employee or agent of a candidate or political party.

Sometimes, they have also coordinated illegal spending through contracting with common vendors, funneling money through shell corporations and utilizing clusters of consulting firms to synchronize ad spending.

The methods that bad actors deploy are only growing as more time passes and too few people face consequences.  

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In recent years, CLC has filed complaints against Democratic and Republican-affiliated candidates and groups for exploiting loopholes in existing laws and has sued the FEC repeatedly for its refusal to stop overt instances of illegal coordination.

As egregious violations continue to pile up, it is clear that cracking down on illegal coordination would benefit the American people and our democracy. Proposals for stronger coordination laws have gotten bipartisan support in recent years through federal legislation like the Political Accountability and Transparency Act

However, these laws need to be accompanied by a commitment to enforcing them, which is why we need a stronger FEC to hold politicians and their donors accountable.

One solution is the For the People Act, H.R. 1/S. 1, a bill that would try to restore the agency’s ability to take substantiative enforcement action.

It would decrease dysfunction at the FEC by changing the number of Commissioners from six to five, creating a nonpartisan advisory panel to identify and recommend qualified nominees and strengthening the enforcement process to prevent Commissioners from shutting down investigations at an early stage.

We need better protections against circumventing coordination rules. To ensure that illegal coordination no longer plagues our country to the same extent in the coming decade, we must step up enforcement of the laws we have on the books and restructure our country’s federal election watchdog agency.

Georgia is a Communications Assistant at CLC.