Two weeks ago Rick Perry’s presidential campaign essentially died.
On August 10, with the former Texas governor polling within the margin of error after an unremarkable performance at Fox News’s so-called kiddie table debate in Cleveland, his campaign confirmed that it could no longer pay its staff.
Perry didn’t have much money as it was. In the second quarter this year he had raised just $1.14 million. By July 15, he had a paltry $883,913 in cash on hand. The campaign of fellow Texan Ted Cruz, by contrast, raised $14 million in the same period.
Near bankruptcy used to mean something for a candidate. An old cliché in politics is that campaigns don’t end, they run out of money. By this point in previous presidential cycles it was typical to see a winnowing of the field, as poorly funded candidates realized fumes wouldn’t be enough to keep them chugging along. In August 2011, for instance, former Minnesota governor Tim Pawlenty, who had raised more than $4 million in the second quarter, dropped out of the race after spending his campaign into debt.
Things are different now. The Supreme Court’s 2010 Citizens United decision did not immediately usher in an entirely new way of campaigning. In 2012, super PACs’ main function was to lob attack ads at the opposition. But to hear critics of the decision tell it, that was never going to last. The role of super PACs in presidential elections was inevitably going to mature into something more central and less transparent.
And if Perry’s campaign is any indication, that’s exactly what has happened.
“The court said, ‘We’re gonna allow a flood of unlimited money into our elections, but don’t worry, America, the money will be independent of candidates so it can’t corrupt them,’” said Paul Ryan of the Campaign Legal Center. “Five years later—predictably, in my view—it’s not at all independent.”
Super PACs have brought Perry back to life. In the wake of the governor’s campaign pay freeze, NBC News reported that the candidate’s trio of super PACs—Opportunity and Freedom PAC, Opportunity and Freedom PAC I, and Opportunity and Freedom PAC II—was going to act where the campaign couldn’t.
According to NBC, Austin Barbour, the central adviser to the three super PACs, said the groups had been planning for some time how to fill the void left by the campaign’s dire financial situation. “We saw several weeks ago, when the campaign finance reports first came out, that this was probably going to happen with the campaign,” he told NBC. The actual campaign would focus on funding Perry’s travel, Barbour said, and the super PACs would hire staff—particularly in Iowa—to build a competitive ground operation.
If campaigns and super PACs are supposed to operate independently from each other, it is difficult to see how Perry’s could possibly remain within the confines of the law while aiding each other’s operations in this manner. Jeff Miller, Perry’s campaign manager, emphasized that the unpaid Perry staffers didn’t join the Perry super PACs. “No Perry for President staffers moved over to the super PAC,” Miller said. He added that since the campaign had stopped paying its staff “at the first of August” it has started to bring “people back onto payroll in Iowa and South Carolina.”
But whether Perry’s aides were shifted from one payroll to another or not, there is little way to tell whether a campaign is playing by the rules, and if it isn’t, there’s little chance it will face any repercussions.
And in 2016, Perry is hardly alone in testing the boundaries.
“The FEC says only certain actions of theirs need to be independent of candidates,” former FEC chairman Trevor Potter said of super PACs.
Operatives at super PACs and campaigns can talk to each other without breaking the law. They can, until the fall, according to The Washington Post, “confer with a campaign” about “issue ads” that feature a candidate, and a campaign can even, according to some interpretations of the law, receive a super PAC’s “entire media plan” on the condition that the campaign offers no input.
“Nonetheless,” Potter said, “it appears that these groups may be violating even the commission’s narrower rules.”
Certain relationships between the current crop of candidates and their super PAC staffers have appeared, on the surface, incestuous.
Jeb Bush’s super PAC, Right to Rise, is run by Mike Murphy, his adviser since at least 1988.
Rand Paul is supported by America’s Liberty PAC, which is run by Jesse Benton, who is married to Paul’s niece. (Benton was indicted this month, making his future at the PAC uncertain.)
There is no way to know whether these campaigns and super PACs are complying with the law, which stipulates that if a super PAC spends any money with the cooperation of, in consultation with, or at the request of a candidate, that money is a “coordinated expenditure” and thus an illegal contribution.
Realistically, Jeb Bush and Mike Murphy, or Hillary Clinton and the staff at Correct the Record, could be talking about the purchase of political ads while cuddling in bed together on a daily basis and nobody would ever know unless the FEC or the Department of Justice opened up an investigation.
And they’re not going to do that.
“What I think is going on, with respect to presidential candidates across the board, is a) they know the Federal Election Commission is mired in partisan gridlock and will not be enforcing the laws in this cycle; and b) that the Department of Justice has very little history of enforcing campaign law,” Ryan told me. “So from the view of super PACs, there is no cop on the beat. It’s a Wild West out there.”
Potter agreed. He said the FEC, which is run by three Republicans and three Democrats, has been “essentially deadlocked since the new commissioners came on in 2008 and 2009.”
Votes by the six-person commission are often 3-3 ties, which Potter, Ryan, and FEC Chairwoman Ann Ravel blame on the body’s Republican members: Lee Goodman, Matt Peterson, and Caroline Hunter. The three are, according to their critics, ideologically opposed to campaign finance regulation and are dedicated to carrying out the wishes of the Republican congressional leadership. But Goodman, in a May column for Politico magazine, argued that the makeup of the body is the problem, not its members.
Whatever the cause, the result is gridlock. Nothing gets investigated, no one gets prosecuted, campaigns—but who really knows?—flout the rules.
”It’s the worst-case scenario,” Potter told me, “where you have all of this activity which appears to be in tandem with candidates and outside groups, but nobody is doing anything about it.”
Ravel went as far as to bluntly admit to The New York Times that “the likelihood of the laws being enforced is slim…I never want to give up, but I’m not under any illusions. People think the FEC is dysfunctional. It’s worse than dysfunctional.”
There has been, so far, only one federal election law prosecution in the post-Citizens era, and it was conducted by the DOJ.
Tyler Harber, a Republican political operative from Virginia, pleaded guilty in February to illegally directing a PAC to buy ads in support of Chris Perkins, a congressional candidate whose campaign he managed. Prosecutors said the case was the “first criminal prosecution in the United States based upon the coordination of campaign contributions between political committees.”
Activists at the time said the case should be viewed as a warning for candidates and their “independent” organizations, but there is little evidence that the DOJ is making FEC violations a priority. And were the Obama Justice Department to begin aggressively investigating the 17 Republican presidential campaigns, there would be—perhaps justifiably—outrage on the right.
But that’s not likely to happen, anyway. While President Obama was once a vocal critic of the corrupting influence of super PACs, he and his party have made peace with the new system, and he has refused to make campaign finance reform a priority. As Ryan noted, “The president has not lived up to his own campaign promises.”