Oops

How Trump Screwed His Own Super PACs

President Trump didn’t waste any time declaring his plan to run for re-election. But that decision has put groups that support his presidency in an awkward position.

Photo Illustration by Sarah Rogers/The Daily Beast

Some pro-Donald Trump political groups say the president’s early declaration of his re-election candidacy is forcing them to be transparent about their activities—and weighing them down with paperwork and compliance costs.

A lawyer for two pro-Trump groups, Great America PAC and the Committee to Defend the President, told The Daily Beast that Trump’s early official entry into the 2020 race has forced the two groups to reassess and redouble their disclosures to the Federal Election Commission.

“President Trump is now a clearly identified federal candidate, and spending any funds to make public communications that could be deemed as being in support of him requires filing” a notice of an independent expenditure with the FEC, said Dan Backer, a Republican attorney who represents both groups.

Other campaign finance experts say the groups would likely have to report some of that activity anyway, but Backer’s comments show how President Trump’s immediate declaration of his re-election candidacy is shaking up past campaign finance practices—and could even be inadvertently adding a measure of transparency to the process.

Trump officially declared for re-election just hours after he was inaugurated on Jan. 20, allowing his campaign to raise and spend money for the duration of his first term. His campaign committee has already been raising money for his re-election with occasionally dubious fundraising tactics.

Political groups that support the president but can’t legally coordinate with his campaign have also been ramping up their operations.

Backer’s two groups have together reported more than $540,000 in pro-Trump independent expenditures since last month. Those funds paid for digital and television ads, email marketing efforts, and phone-banking campaigns, according to FEC filings.

Those expenditures paid for communications that ask voters to “support” Trump. That language triggers FEC reporting requirements given Trump’s status as a candidate, Backer says. And even where the threshold for reporting might be blurry, Backer says he is advising his clients to err on the side of caution.

He is not particularly concerned with transparency for its own sake, but Backer says that liberal groups opposed to the president would jump at the chance to take legal action against his clients, and the resulting costs would be even more burdensome than regular FEC disclosures.

“My clients are regularly filing small communications programs and tests that might otherwise not be reportable, because the burden of doing so, while frustrating and not insubstantial, costs less than dealing with the whining from bitter Clinton allies looking for revenge against the two most successful and impactful outside voices this past cycle,” Backer said in an email.

Both groups are “hybrid PACs” that can raise and spend unlimited funds independent of federal political candidates and raise money in a separate account, subject to contribution limits, for disbursal directly to federal campaigns.

Great America PAC, the more formidable of the two groups, reported more than $23 million in independent expenditures during the 2016 cycle. Three donors provided $9 million for the group: Marvel Entertainment CEO Ike Perlmutter, Dallas banker Andy Beal, and Houston Texans owner Bob McNair.

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The Committee to Defend the President, formerly Stop Hillary PAC, had fewer high-dollar benefactors: Its largest contribution of the cycle, just $30,000, came from Colorado energy heir Tatnall Hillman. The group reported nearly $3.5 million in independent expenditures through last year.

Neither group has filed a periodic donor disclosure report with the FEC this year—both switched from a monthly to a quarterly filing schedule in January—but they have kept up their independent expenditures, if not at the same scale as last year.

Their spending habits are public knowledge only because they have been notifying the FEC pursuant to Backer’s conservative disclosure strategy.

“Trump’s filing as a candidate on the day of his inauguration has a profoundly pro-disclosure outcome,” Backer observed.

Some campaign finance experts say he is overstating the impact, though they acknowledge that Trump’s status as a clearly defined federal candidate does trigger reporting requirements.

“They are saying ‘support Trump’—words of express advocacy in their communications. And he’s a candidate. So, therefore they have to file an IE report,” noted election attorney Jason Torchinsky.

But he noted that such disclosure would be required even absent an official declaration by dint of the president’s public statements about his presumed re-election candidacy.

“Trump has given media interviews where he has talked about ‘8 years’—indicating he is a candidate for 2020 because he intends to run then. So he would—as a technical matter—have ‘candidate’ status with the FEC anyway.”

Backer acknowledged those public statements, but said that Trump’s early declaration of candidacy made the issue even more stark, and would invite additional litigation—and the accompanying costs for his clients—absent regular FEC disclosure.

“In the absence of clear, effective, dispositive guidance at all times, do you advise client to go for what makes sense… or to be safer knowing liberal campaign finance scolds are always happy to raise money off attacking anything they can,” he said.

Trump’s Republican primary rivals during the 2016 election cycle might have muddied those waters a bit, he added.

“Mere expressions of desire to run and even intent to run may not be adequate,” Backer said, pointing to extensive apparent campaign activity by former Florida Governor Jeb Bush before he was officially running.

“He flubbed at least once or twice while ‘not a candidate.’”