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'Candidates' Driving Cash-Filled Trucks Through Campaign-Finance Loopholes

Candidates, and "un-candidates," for the presidency are slicing and dicing campaign-finance law, testing the boundaries of what's legal.
TaxCredits.net via Flickr
Candidates, and "un-candidates," for the presidency are slicing and dicing campaign-finance law, testing the boundaries of what's legal.

If Congress is all about sausage-making, Washington's political-money industry has its own specialty: slicing the particular sausage that is campaign finance law, thinner and thinner.

The meat of the law is in its definitions. What is a "contribution"? An "expenditure"? What does "coordinate" really mean? "Public communication"? How about "candidate"?

The campaign-finance law, its amendments, regulations and related court decisions define these terms and dozens of others. Nowadays, the art of campaign-finance lawyering lies in determining what a definition fails to say — and then driving a cash-filled truck through the loophole.

"It doesn't include everything someone could think of," said David Keating, the inventor of a type of political action committee known as a superPAC and president of the anti-regulation Center for Competitive Politics.

Keating was talking about one particular definition. He could have been referring to any or all of them.

Consider Correct the Record, a liberal group built to strike back against conservatives who attack Democratic candidate Hillary Clinton. It recently announced that it has officially registered as a superPAC, and it will work directly with the Clinton campaign. Up until now, those were seen as legally incompatible. SuperPACs cannot coordinate with candidate campaigns.

But decisions made by the Federal Election Commission nearly a decade ago — rules meant to benefit bloggers — seem able to protect Correct the Record the same as a guy banging away on a computer in his study.

Correct the Record says it won't advertise, which means its messages won't count as contributions to Clinton, or expenditures on her behalf. In turn, that means the bar on coordination won't apply. The superPAC can't be compensated by the Clinton campaign. No problem. It can raise unlimited contributions.

"You could read it that way," said Brett Kappel, a campaign-finance lawyer, who dissected this for NPR.

Correct the Record's move is audacious, but no more than the deal arranged for Republican "un-candidate" Jeb Bush and the officially unconnected Right to Rise Super PAC. In the first five months of 2015, Bush and others are expected to have raised $100 million for Right to Rise.

That's because Bush's legal team took an FEC rule — that candidates can only solicit contributions of $5,000 or less — and stood it on its head. Don't become a candidate, or at least not while you're asking billionaires for money.

"Any federal candidate or officeholder could not do it," Keating said.

Copyright 2021 NPR. To see more, visit https://www.npr.org.

Peter Overby has covered Washington power, money, and influence since a foresighted NPR editor created the beat in 1994.
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