The Justice Department is stepping up scrutiny of the increasingly cozy ties between candidates and their outside allies, a move that could jolt the freewheeling campaign-finance atmosphere ahead of the 2016 elections.
A rare conviction of a Virginia campaign operative last month is part of a broader focus on cases in which candidates may be violating a federal ban on sharing strategic information with well-funded independent allies, Justice officials said.
“The opportunity to commit the crime has increased dramatically,” said Justice spokesman Peter Carr. “Illegal coordination is difficult to detect, which is why we strongly encourage party or campaign insiders to come forward.”
The department’s move comes as complaints have stalled before the Federal Election Commission, which has not moved ahead with any coordination investigations since the Supreme Court’s Citizens United decision in 2010 triggered a proliferation of big-money groups.
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The newly aggressive stance by the Justice Department is certain to have wide reverberations at a time when candidates are taking more leeway than ever in their relationships with independent allies. Many potential 2016 candidates are working hand-in-glove with super PACs set up to support them.
“It will have a huge impact on the landscape,” said Lawrence Norton, a former FEC general counsel who co-chairs the political law practice at Venable. With independent groups “only growing in influence, that announcement is a signal to everyone involved in the 2016 campaign that government is watching.
“We’re talking about potential criminal enforcement action, not a FEC investigation or a fine,” he said. “The implications are serious.”
Guilty plea in Virginia
The recent case involved Tyler Harber, a 34-year-old Republican campaign operative from Alexandria, Va., who pleaded guilty Feb. 12 to illegally coordinating $325,000 spent by a super PAC with a congressional campaign he was running. Prosecutors noted that it was the first criminal conviction for campaign-finance coordination.
In a statement announcing Harber’s plea, Assistant Attorney General Leslie Caldwell said the department “will aggressively pursue coordination offenses at every appropriate opportunity.”
Anthony Herman, another former FEC general counsel, said it appears that federal prosecutors “view themselves as filling a role – to the extent that they think the FEC is not on the job, they think part of their job is to fill that gap.”
Even so, pursuing coordination cases and securing convictions is not easy without inside information. The few known cases in which federal prosecutors have investigated illegal coordination were driven by tips they received while pursuing other alleged crimes.
“It is going to be very difficult to bring these kinds of cases and to ferret out instances of unlawful coordination,” said Herman, a senior counsel at Covington & Burling.
The Harber case began when Terry Wear, a local Republican party official, alerted federal prosecutors in Virginia about a suspicious super PAC called the National Republican Victory Fund that he believed was trying to scam donors.
Law enforcement officials later discovered the super PAC was being run by Harber at the same time he was serving as campaign manager for GOP congressional candidate Chris Perkins. Harber had directed a donor who had given the maximum to Perkins’ campaign to contribute additional funds to the super PAC, much of which he directed back to himself and his family.
Such a clear-cut case of someone straddling the line is unusual. More often, candidates and their aides walk right up to the line – and often shout across it.
Nonetheless, experts said the threat of federal criminal investigations could give pause to campaign operatives who have become accustomed to a lack of action by the sharply divided FEC.
FEC enforcement declines
Overall FEC enforcement has plummeted in the past decade. The agency found election-law violations in just 16 cases last year and issued $206,235 in civil penalties – one of the smallest amounts in 30 years, according to data obtained by The Washington Post through a public-record request. An additional 116 cases were closed without finding fault.
“I’m glad somebody is doing these cases,” said Ellen Weintraub, a Democratic member of the commission. “Maybe that will put a little bit of a fear of God in people.”
Her GOP colleagues on the panel say the lack of FEC investigations is a sign that people are doing a good job of following the rules.
“Republicans on the FEC have long held we are here to enforce the law as it is, not as we or others wish it to be,” said Caroline Hunter, a Republican member. “This philosophy, coupled with a concerted effort by the FEC to encourage voluntary compliance, has reduced civil penalties.”
The FEC has closed 29 complaints of alleged illegal coordination between candidates and super PACs in the past five years, without opening an investigation into any of them. In 28 of those cases, the agency’s general counsel did not recommend an investigation, said Lee Goodman, one of the three GOP commissioners.
Narrowly drawn rules
That’s in part because the FEC’s narrowly drawn coordination regulation – which was the subject of years of litigation – contains so many exceptions that there is still ample room for candidates to work in concert with their big-money allies. For example, communicating strategic information in public, as several congressional campaigns did in the 2014 elections, is legal.
Among the coordination cases the FEC closed recently without investigating was a complaint against Terri Lynn Land, a 2014 Republican candidate for U.S. Senate in Michigan, who had said in a speech that her campaign had talked to strategists for independent super PACs who “really want to support us here in Michigan.”
The agency also dismissed a complaint alleging that the 2012 campaign of then-Senate candidate Angus King, an independent from Maine, coordinated with a super PAC. The complaint noted that a King campaign chairman had served as a director of a super PAC backing the candidate.
The limitations of the current rules are part of the problem, advocates for stricter enforcement say.
“There is a huge gap between what the general public would think of as coordination and what the FEC would define as coordination,” said Paul Ryan, senior counsel at the Campaign Legal Center.
Ann Ravel, the Democratic chairman of the FEC, noted that coordination rules were last updated the year before the Citizens United decision.
“They really didn’t anticipate the kinds of super PACs that now exist,” she said. “But the likelihood of us being able to have four votes to strengthen the rules on coordination is not great.”