"[I]n the current presidential campaign, the lines [between super PACs and candidates] are being blurred even more and no candidate is testing the legal limits more visibly or blatantly than Carly Fiorina, whose performance in Wednesday night’s Republican debate has thrust her candidacy into the spotlight," NBC News's Alexandra Jaffe and Kailani Koenig in a posting today at NBCNews.com's Meet the Press page.
[For their part, MSNBC.com picked up quickly on the story, front-paging it on their main page -- see image below]
Jaffe and Koenig devoted 42 paragraphs to portraying Fiorina's backers as operating in some dangerous "wild West" territory when it comes to campaign finance laws. Of course, at no point was any serious consideration given to libertarian arguments that maybe, just maybe, the byzantine regulatory scheme that is federal campaign finance laws is an unconstitutional farce that does nothing to prevent corruption and everything to encumber the freedom of political speech.
Instead readers were treated to hand-wringing about the "wild West of campaign finance that's emerged from the Supreme Court's Citizens United decision" and the complaints of "reform-minded" liberal pushers of campaign-finance restrictions funded in part by George Soros's Open Society Foundations. And even if there are bona fide violations of campaign finance law, Jaffe and Koenig lamented, there's little risk of prosecution and/or of severe penalties for those violations (emphases mine)
In the wild West of campaign finance that's emerged from the Supreme Court's Citizens United decision, Fiorina is hardly an outlaw.
"What federal law regulates is coordinated spending of money," said Paul Ryan, senior counsel at the reform-minded Campaign Legal Center. "The law doesn't prohibit coordination in some general sense, what the law prohibits is coordination of expenditures."
Though the lines are fuzzy, Fiorina's campaign does appear to lean on its super PAC in a way that most other campaigns do not. Her official campaign has one full time staffer in New Hampshire, and 2 part timers. Her super PAC has seven paid staffers. In Iowa she has 2 campaign staffers; the super PAC has five. While other super PACs have a presence at events for the candidates they support, CARLY for America stands out for taking on staffing and other duties at nearly all of her events.
Staffers from the two groups say they speak to each other — indeed, some, like the top staffers for her Iowa campaign and super PAC say they are good friends — but never, they say, about spending money or candidate strategy. Two staffers, one from each group, at one point declined a reporter's offer to get drinks after the event — "to keep up appearances," they said.
And staffers from the two groups often work side by side, as her super PAC has taken on many of the grassroots duties that campaigns have done in the past.
But super PAC staffers say every move they make is dictated by publicly available information. Fiorina's campaign keeps a public Google Calendar of her events that the super PAC monitors.
"We try to see where we can provide from afar," CARLY for America spokeswoman Leslie Shedd told NBC News in an interview.
The super PAC says they follow that Google calendar as well as local reporters on Twitter who are known to have the inside scoop on campaign events in a state. One CARLY for America adviser told NBC News that if the event is public, they show up; if not, they'll contact the organizer to ask if it's okay to come.
CARLY for America declined to offer any details on their interpretation of FEC rules, whether the group gives any guidance on what interactions are and aren't allowed between super PAC and campaign staffers, or how the decision was made to focus their efforts on a ground game.
[...]
Indeed, [CARLY for America spokeswoman Leslie] Shedd said CFA is just following the latest trends in campaign finance.
"This is the modern version of what campaigns have turned into. You've seen this evolution of how campaigns are operating over time."
But that doesn't mean it comes without risks. [Former FEC Chairman David] Mason said that frequent communication between the super PAC and campaign could make it tougher to prove innocence later on.
"If there are lots of communications between the super PAC and the campaign, then you raise this question about whether there was information passed from the campaign to the super PAC about these ads," he said.
"It could raise some compliance questions."
Still, the risk of prosecution for any of these practices is low. The FEC isn't known for its rigorous enforcement practices and investigations are rare because they're hard to prove and because of a partisan deadlock among the commission. Fines are even more rare, and often negligible for groups raising millions of dollars. A New York Times analysis found that fines levied by the FEC in 2014 were the lowest since 2001, amounting to less than $600,000 — in contrast to the $7 billion spent by campaigns and groups on elections that year.
You'll notice that Jaffe and Koenig misplaced the burden of proof from the government to prove a violation of the law to the accused party, in this case a Republican super PAC, to "prove innocence."
That's quite a way for two journalists -- who should prize the First Amendment's protections of free speech and free press above all else -- to mark Constitution Day.
