Super PACs, now a staple in modern presidential campaigns, are already gearing up to spend unlimited sums to support and oppose candidates for the 2024 election — and many of those groups have a cozy relationship with the candidates they support.
Florida Gov. Ron DeSantis (R) has been spotted speaking at fundraising events with a super PAC supporting his campaign called Never Back Down, which has raised $130.6 million through the midyear. President Joe Biden “dispatched” Katie Petrelius, the finance director of his 2020 campaign and a Biden White House aide, to help lead Future Forward USA, a pro-Biden super PAC, the New York Times reported in July.
Meanwhile, a super PAC called Make America Great Again (MAGA) Inc led by a former aide to President Donald Trump has already raised $13.14 million for the 2024 election cycle. Another Republican presidential candidate, former Arkansas Gov. Asa Hutchinson, announced that his longtime aide, Jon Gilmore, will be the chair of a super PAC backing his campaign called America Strong and Free Action.
These super PACs have numerous links to the candidates they are supporting. This might raise eyebrows to people that remember Citizens United v. Federal Election Commission, which stated that any coordination between a campaign committee and an outside group backing their campaign – including PACs, corporations, nonprofits and unions – is illegal.
Citizens United opened the door for unchecked corporate influence in U.S. elections
Citizens United v. FEC, a landmark Supreme Court decision decided in 2010, struck down corporate political contribution limitations with a catch: political groups that spend independently cannot coordinate with campaign committees.
The decision maintained that restricting corporate political spending conflicted with the First Amendment’s “open marketplace of ideas.”
The Citizens United ruling relies in part on the argument that previous restrictions on corporate contributions did not further a compelling governmental interest narrowly tailored to combat, as stated in Austin v. Michigan Chamber of Commerce, “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.”
As a result, Citizens United paved the way for the creation of super PACs, a special kind of PAC that can legally spend and raise unlimited amounts to influence the election process. Previously, PACs were held to contribution limits out of concern for political corruption.
An underlying assumption of Citizens United was that unlimited spending would not corrupt the electoral process because all spending would be independent and uncoordinated. And yet, activities that look a lot like coordination occur on a daily basis.
The FEC’s three-pronged coordination test
The FEC uses a three-pronged test to identify coordination violations. These prongs can be short-handed into the payment, content and conduct categories. Broadly, each category answers a specific question.
- Payment: Was a coordinated communication paid for, in whole or in part, by a person other than the candidate or candidate committee?
- Content: Was the communication an electioneering communication and/or did the communication expressly align with the electoral outcome that the candidate committee is advocating for?
- Conduct: Can we prove that the coordination was substantially discussed and planned at the request/suggestion of the involved parties?
The content category requires a case to meet one of five standards, all of which seem easy to check off. On the other hand, conduct requires a much heavier burden of proof, because it demands explicit proof of intentional collaboration.
The conduct category of the FEC’s test also outlines multiple safe harbor provisions that act as legal exemptions to let candidates, committees or vendors avoid liability if they meet a set of outlined conditions — making it even more difficult to hold potential coordinators accountable.
One example of a safe harbor is the use of a firewall. According to the FEC, a firewall is a system “designed and implemented to prohibit the flow of information between employees or consultants providing service to the person paying for the communication.” In practice, “the firewall must be described in a written policy statement that is distributed to all employees, consultants and clients affected by the policy.” Even when a firewall is outlined in a written policy statement, it is difficult to verify that it is being enforced.
The FEC’s coordination test is rarely enforced due to commissioner partisanship and frequent deadlocks and dismissals. The vast majority of coordination complaints do not result in legal action. In fact, not a single coordination investigation has ever resulted in a PAC being fined.
However obvious it may be that an outside spending group is collaborating with a campaign committee, the Supreme Court has held that the “appearance of corruption” alone cannot be prosecuted.
Some common practices that might give the appearance of corruption but have not risen to the level of coordination determined by the FEC include when a campaign committee and outside group share the same vendors, when super PACs are managed by former staff members of an active campaign or family members of a candidate, and a practice known as “redboxing.”
Sharing vendors
Campaign committees often share vendors with the super PACs supporting their campaigns. In some cases this may be coincidental, but it raises questions about the independence of the super PACs’ political spending.
One of the Campaign Legal Center’s most important ongoing coordination complaints is a joint complaint with the Giffords Law Center, a pro-gun control group, against the National Rifle Association. The NRA has a history of allegations of coordination with Trump’s presidential campaign and multiple Senate campaigns.
In 2016, the NRA spent approximately $30 million to support Trump or oppose Hillary Clinton. Investigations revealed that the NRA shared many of the same media and consulting firms as Trump’s campaign committee. The Campaign Legal Center also alleged that the NRA used the same media vendors as Sen. Josh Hawley (R-Mo.) and illegally contributed nearly $1 million to Hawley through shell corporations that were coordinating with his official campaign.
Enlisting former staff and family members
In some cases, super PACs are operated by a candidate’s family member or a former staff member. Although this may seem counterintuitive for someone who wants to prevent the appearance of corruption, in many cases, enlisting former staff and family members to operate a super PAC does not constitute coordination as currently outlined by the FEC.
In 2022, the co-founder of FTX, Ryan Salame, donated to a super PAC called “GMI PAC,” which then donated to another super PAC that backed his girlfriend Michelle Bond’s congressional campaign. GMI PAC raised roughly $12.9 million dollars in 2022, $1.5 million of which came from Salame.
In an email to a crypto newsletter called The Block, GMI PAC maintained, “With regard to the election for the NY-1 House seat, the PAC took early steps to firewall off board member and donor Ryan Salame from any and all communications and decisions GMI PAC made related to that race.” Ryan Salame, alongside his former business partner Sam Bankman-Fried, have made headlines for ongoing legal issues surrounding the misappropriation of billions of dollars from their bankrupt digital asset exchange.
A Trump-backing super PAC called MAGA Inc. was incorporated in 2022 by Trump’s former spokesman and aide, Taylor Budowich. Budowich managed Trump’s Save America PAC, which raised approximately $109 million in 2022. Recently, he appeared as a witness in the Mar-a-Lago classified document investigation.
Redboxing
Another way to sidestep federal campaign finance laws is “redboxing.” Redboxing, according to the Campaign Legal Center, is “an illegal practice in which campaigns publish messaging and signal to supportive super PACs what material they should use in their ads.”
One of the most well known redboxing stories took place in 2014, when Sen. Mitch McConnell’s (R-Ky.) senatorial campaign released B-roll footage on their website for super PACs to pick up and use.
More recently, Rep. Kurt Schrader (D-Ore.) was criticized for overtly engaging in redboxing on his 2022 campaign committee’s website. Dark money groups began using Schrader’s explicit directions to attack his congressional opponent, Jamie McLeod-Skinner.
Redboxing is not unique to federal campaigns. In 2022, redboxing reached the attention of the Philadelphia Board of Ethics, which voted to close campaign finance loopholes that were being exploited by city office candidates.
Saurav Ghosh, the Campaign Legal Center’s federal campaign finance director, told OpenSecrets that the FEC’s failure to prosecute coordination has created a “culture of impunity.”
“Folks look at the law and say, ‘Well, [the law] says XYZ, but I think I can still get away with doing the things that the law says I’m not allowed to do. Because, you know, there’s a very high likelihood the FEC will deadlock and dismiss and won’t even hold me accountable,’” Ghosh said. “In any situation where the law says something – but the folks responsible for enforcing the law don’t agree with what it says or don’t have the willingness to enforce it – the law ends up being a lot less effective, a lot less meaningful, because people don’t take it seriously.”
Committees Researcher Andrew Mayersohn contributed to this report.