A recently formed outside money group is testing the limits of independent political spending, alarming campaign finance reform advocates.
Indiana attorney James Bopp Jr., one of the lawyers who brought the watershed Citizens United case before the Supreme Court, registered the political action committee, the Republican Super PAC, with the Federal Election Commission last week.
As an independent expenditure-only committee, the group can raise unlimited funds from individuals and corporations to advocate for or against candidates. These “super PACs” are banned from coordinating with candidates or parties.
But in a twist, Republican Super PAC will rely on candidates, elected officials and state and national parties to be the group’s fundraisers, asking them to tell donors who want to give more than the federally limited contributions to direct additional funds to the PAC. The PAC would then use the money to campaign on behalf of the candidates or parties that solicited the funds
Despite the questions that raises about the PAC’s independence, Bopp said the tactic was “perfectly legal.”
“It’s a legal outlet to raise money,” Bopp said. “Even though [candidates] cannot participate in [the PAC’s] spending of money in any way, the people that run the super PAC will use it to help advance candidates that Republicans support.”
Bopp created the PAC with two other members of the Republican National Committee, Roger Villere and Solomon Yue. They are presenting details of the project Wednesday to members of the committee, who are in Dallas for a party meeting.
Election law attorneys and campaign finance reform advocates said Bopp is treading onto legally shaky ground – a familiar position for the GOP attorney, one of the most zealous challengers of campaign finance restrictions.
A recent string of campaign finance court cases, including Citizens United, struck down parts of the landmark McCain-Feingold bill of 2002, which bans unlimited “soft money” contributions to political parties and prohibited federal officials and candidates from soliciting unrestricted funds.
The solicitation ban remains on the books, but now exists in a post-Citizens United gray zone.
Under McCain-Feingold, “a federal officeholder cannot solicit contributions in connection to federal elections unless the funds are subject to the limitations, prohibitions and reporting requirement of act,” said Lawrence Noble, former counsel to the Federal Election Commission. “Now, contributions to independent expenditure committees are not subject to those limitations. That leaves the question of whether or not the federal officeholder is free to raise money for those committees.”
“The FEC has not done anything to explain now what’s happened,” Noble added. “We need someone to come out and interpret this.”
Bopp expressed no such uncertainty, opting not to seek an advisory opinion from the commission on the legality of his proposal.
“Money for a federal PAC is hard money. This is a federal PAC, so this is hard money,” Bopp said. “We don’t need to get permission of the FEC.”
Campaign finance reform advocates said the PAC appears designed to skirt existing federal campaign finance rules and were examining ways to challenge it.
“It looks like a scheme to raise and spend soft money on behalf of the RNC, which is illegal,” said Fred Wertheimer, president of the advocacy group Democracy 21. “In our view, it also looks like a scheme to have federal officials raise unlimited money in violation of the statute.”
Wertheimer said Bopp was “blowing smoke” by arguing that the PAC would be raising hard money, saying that the accepted definition of soft money is contributions not subject to federal limits.
“His argument says that President Obama or Speaker [John A.] Boehner can go out and solicit $5 million from an individual for a PAC that can then spend it on their behalf – if that’s not a corrupting contribution that this act was meant to prohibit, I don’t know what corruption means,” Wertheimer said.
“We’re going to challenge this every place we can,” he added, saying Democracy 21 was considering taking the matter to the Federal Election Commission, the Department of Justice and members of Congress.
It’s unclear how the new PAC would affect fundraising efforts by the Republican National Committee. Top RNC officials said they were not consulted by Bopp about the project.
“I don’t know anything about it and no one has asked me or my staff to do anything relative to this,” said Ronald Weiser, the committee’s national finance chairman.
Bopp, a member of the RNC who is chairman of the party’s committee on presidential debates, said the organization so far has gotten a “very positive” reception from other Republicans.
RNC spokesman Kirsten Kukowski said, however, that “the RNC is not and will not be affiliated with the PAC.”
Experts said politicians will have to ask themselves whether the prospect of financial windfall is worth the risk of running afoul of campaign finance regulations.
“It’s adventuresome,” said Jan Baran, a Republican campaign finance attorney. “The question is whether anyone other than Jim Bopp will join him on his adventure.”
Matea Gold of the Washington bureau contributed to this report.