Hillary’s SuperPAC War Proves Yet Again That Campaign Finance Needs a Fix

Money matters a lot when millions are spent to influence elections. But liberals and conservatives agree that the Federal Election Commission, which is supposed to regulate these issues, is all but useless.

01.28.14 10:45 AM ET

For those keeping tabs on Hillary 2016 fever: On January 22, Stop Hillary, the hybrid PAC formed last summer by Republican operatives dead set on preventing Hillary Clinton from becoming our next president, filed an FEC complaint against Ready for Hillary, the super PAC formed last January by Hillary fans and former staffers looking to grease the skids for her to do precisely that.

The folks at Stop Hillary are chafed that Ready for Hillary, in a flurry of networking and buck-raking, has rented the mailing list of Hillary Clinton’s 2008 presidential campaign. This, claims Stop Hillary, is tantamount to an authorization of Ready for Hillary by Hillary, who, with such an authorization has a) become a de facto candidate for office and b) transformed Ready for Hillary from a super PAC to an authorized PAC, subject to much tighter restrictions on the size of the checks it collects. As such, says Stop Hillary, both Hillary and Ready for Hillary are in violation of federal campaign finance law and must be punished. Pronto. With extreme prejudice.  

“This is aiding and abetting criminal activity,” charges campaign finance attorney Dan Backer, counsel for Stop Hillary. (Backer, incidentally, was the winning attorney in Carey v. FEC, the 2011 federal court ruling that first brought us hybrid PACs, which essentially function as both traditional and super PACs.) Of his group’s complaint, Backer tells me, “It is a very big deal. It’s the first case like this that the FEC will consider concerning super PACs or hybrid PACs involved in these kinds of efforts.”

How does Ready for Hillary respond to the allegation from Backer et al? “They’re looking for something to do, I guess,” spokesman Seth Bringman noted nonchalantly in a statement.

Maybe Stop Hillary has a legitimate beef. Maybe it doesn’t. But don’t look to the FEC to call the question, because no one genuinely expects the agency to rule on the complaint at all—not even Backer. “It takes four votes to proceed,” he says, when pressed on what he anticipates from the six-member commission (split evenly between Republicans and Democrats). “Certainly the Democrats on the commission have no desire to stop Hillary.” Contending that the agency has been “very hostile to conservatives of late,” Backer says, “I don’t know if there will be four votes to hold her accountable under the law.”

Backer’s complaint goes beyond partisan whining. In recent years, as the world of campaign finance law has become increasingly complex, the agency charged with its administration and enforcement has become increasingly impotent. “The FEC is deadlocked on pretty much everything of importance,” says Robert Maguire, a researcher at the Center for Responsive Politics, a Beltway-based nonprofit that tracks political money and its influence.

This FEC flaccidity is bad news on a couple of levels. For starters, post-Citizens United, no one seems terribly clear about how to navigate the new campaign finance landscape. The FEC, say both Backer and Maguire, has been zero help. “You’re talking about in essence an agency that, four years after Citizens United, still hasn’t even established a procedure for forming a super PAC,” says Maguire, explaining the half-assed non-procedure currently in place.

Even seemingly clear-cut no-nos—such as, say, campaigns coordinating with outside groups—aren’t all that clear-cut: “Nobody’s even sure what ‘coordination’ is,” sighs Maguire. (So much for the RNC’s public grousing earlier this month that Hillary is “fully coordinating” with not one but two pro-Clinton super PACs.)

Backer chalks up some of the agency’s inactivity to cluelessness. “I think the FEC doesn’t have a clear idea about a lot of these complicated issues,” he says. And while the agency dithers, adds Backer, the regulatory landscape falls increasingly behind the times.

As you might imagine, not everyone is unhappy with the regulators’ failure to regulate. When the commission deadlocks 3-3 over whether to investigate a complaint, much less consider sanctions, that case is effectively closed—which means the party accused of misbehavior can keep on doing what it was doing without much fear of reprisal.

Then there are the cases where the FEC does issue a cease and desist directive—only to be completely ignored. Ironically, a couple of Backer’s other PAC clients, Stop Pelosi (aimed at bringing down the House minority leader) and Stand with Rand (aimed at bucking up the libertarian senator), have been involved in just such showdowns. Under current law, an unauthorized PAC may not include the name of a specific political candidate in its official title. Shortly after Stop Pelosi was formed in September, the FEC sent the group a letter demanding that it remove Pelosi’s name.  Backer basically told the agency to sod off.

“They have an erroneous reading of the law,” he tells me. “They are dead wrong, and we dared them to try to enforce it.” Backer says he relishes the idea of the issue going to court. “I would love that case. We would win in a heartbeat.” (The Stand By Rand case has followed an equally defiant trajectory.)

Last spring, when a similar naming controversy bubbled up (this one involving the unrelated pro-Paul group Rand PAC 2016), campaign finance experts pointed out the rich potential for confusion. (For instance, does a partial name require a change? Also, while committees expressly formed to oppose a candidate enjoy certain naming exemptions for certain projects, the FEC has yet to lay out the devilish details.) Paul S. Ryan of the Campaign Legal Center suggested this would be “a good area for the FEC to clarify its own rules.”

Bringing the question back around to Hillary (because, let’s face it, all political roads eventually lead back to Hillary), the squabble over PAC names has implications for both Ready for Hillary and Stop Hillary. Although the two PACs contain Clinton’s name, they do not violate campaign finance law because Hillary (unlike Pelosi and Paul) is not yet a candidate for office. But, in theory, the minute she announces, unauthorized PACs, whether pro- or anti-, will need to chop her name from their titles.

Or not. It depends on what the FEC says about the endless, endlessly confusing particulars. Assuming it says anything—and, more to the point, assuming anybody bothers to listen to the increasingly dysfunctional agency.