Deadlocked on a party-line vote, the Federal Election Commission has dismissed a complaint that Hillary Clinton’s campaign illegally coordinated with a super PAC during the 2016 presidential election cycle.
Continuing a recent trend with the embattled regulatory agency that is currently missing two of six commissioners, it was the Republican commissioners, not Democrats, who voted to stonewall enforcement action over the complaint.
Just one month before the 2016 presidential election, Campaign Legal Center filed a complaint with the FEC alleging that the Clinton campaign illegally coordinated with Correct the Record, a hybrid PAC run by Media Matters for America founder David Brock.
The group, which Brock himself described in a podcast as a “surrogate arm of the Clinton campaign,” spent millions to “correct” criticism of Clinton on social media and in the news media. The group worked closely with the Clinton campaign on opposition research, fundraising, polling, canvassing, press outreach and messaging. Together, the groups coordinated their response to potential threats to the campaign, such as the politicized Benghazi hearings.
Able to collect unlimited sums from donors, Correct the Record reported spending nearly $10 million during the 2016 election. The group was funded mostly through big-dollar contributions from wealthy Democratic donors and $1 million from Priorities USA Action, the super PAC that spent $132 million backing Clinton’s unsuccessful 2016 presidential bid.
Campaign Legal Center argued that Correct the Record’s numerous coordinated efforts to help the Clinton campaign were valuable enough to constitute illegal in-kind contributions from an outside group. Correct the Record argued it could legally coordinate with the Clinton campaign as it posted its communications online — attempting to use an FEC exception that allows for individuals and blogs to post political content on the Internet.
FEC attorneys sided with Campaign Legal Center. Noting that the super PAC didn’t limit its efforts to posting content online, they recommended the commission hold both the Clinton campaign and Correct the Record in violation of campaign finance law over unreported, excessive in-kind contributions.
While the two Democratic-aligned commissioners voted to affirm the recommendation, Republican commissioners Caroline Hunter and Matthew Peterson voted against it, effectively blocking the FEC from taking enforcement action, according to filings released on the agency’s website late last week.
The split decision could embolden super PACs to further coordinate their efforts with campaigns in what is already an enforcement-free atmosphere, said Brendan Fischer, director of federal reform at Campaign Legal Center.
“If this is the rule now, if a campaign can coordinate with a super PAC on everything except broadcast television ads, then there could be a lot more coordination we don’t know about,” Fischer said. “Most campaigns won’t come out and say they are coordinating with a super PAC to win an election.”
Coordination between campaigns and outside groups is notoriously hard to prove — the FEC hasn’t been able to enforce it since the 2010 Citizens United decision that allowed for unlimited independent spending. But in this case, Clinton’s campaign took the rare step of openly admitting that it was coordinating with Correct the Record, and ultimately didn’t face consequences.
The commissioners’ decisions won’t be explained until they release their official reasoning in the near future. Commissioners did not respond to requests for comment before time of publication.
Republicans on the commission have repeatedly voted to dismiss complaints against committees of both parties. They often argue that Democratic-appointed commissioners overstep their bounds in enforcing campaign finance law and endanger free speech rights in the process.
“It’s yet another example of the partisan split on the commission not being partisan in the traditional sense,” Fischer said. “Here it was Democratic commissioners voting to enforce campaign finance laws against a Democratic candidate and Republican commissioners doing the opposite.”
The FEC, which is supposed to have six commissioners, no more than three of whom may represent each major party, is currently short two commissioners. The vacancies exacerbate the dilemma that any enforcement action requires four affirmative votes — meaning all four commissioners would have to agree to move forward.
While the regulatory agency remains deadlocked and overloaded with unresolved cases, the line between independent spending groups and candidate campaigns has increasingly blurred.
Many of the most influential super PACs are directly linked to political parties or prominent political leaders. Senate Majority Leader Harry Reid (D-Nev.) helped found — and promote — the powerhouse Senate Majority PAC, while President Donald Trump has labeled America First Action his only “approved” outside group.
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