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Clinton, Bush lawyers square off in FEC proxy war - POLITICO

http://www.politico.com/story/2015/11/clinton-bush-lawyers-square-off-in-fec-proxy-war-215711

Clinton, Bush lawyers square off in FEC proxy war

Candidates looking for guidance on how to avoid breaking the law by
coordinating too closely with super PACs didn’t get any help on Tuesday
from the Federal Election Commission, the agency charged with clearing up
the finer points of election law.

The commissioners were unable to agree on the trickiest questions raised by
two Democratic super PACS on how closely super PACs can coordinate with
potential candidates before they officially announced that they’re running
for office. The commissioners deadlocked on five of the super PACs’
questions, with the three Republican members of the notoriously
dysfunctional commission unable to agree with the three Democrats.

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The super PACs’ request for guidance also turned into something of a proxy
war for the legal masterminds behind Hillary Clinton’s and Jeb Bush’s
campaign. Marc Elias, the lead lawyer for the two super PACs, as well as a
lawyer for Clinton’s campaign, in effect asked the FEC to condemn tactics
used by Bush this cycle or give Democratic House and Senate candidates
permission to do the same. Charlie Spies, who is Elias’ rough Republican
counterpart, told POLITICO in an interview that if Bush and his super PAC
had crossed a line, then so had Clinton with her family’s foundation.

Super PACs — which are legally barred from working with candidates they
support — have gone further than ever before in coordinating with potential
candidates who say they haven’t yet made up their minds.

Bush showed up at fundraisers hosted by Right to Rise, a super PAC now
supporting him, for months before his June announcement that he would run
for president. Florida Lt. Gov. Carlos Lopez-Cantera seemed to emulate
Bush’s strategy by putting off his announcement of a Senate run as he kept
asking donors for super PAC contributions.

Senate Majority PAC and House Majority PAC, the two flagship super PACs for
Democratic congressional candidates, asked the FEC to clarify the rules in
September. Elias and the super PACs’ other lawyers said in an emergency
request for guidance they had “serious doubts about the permissibility of
many of the activities” carried out by Republicans this , but indicated
they’d embrace those tactics if the FEC gave them the go ahead.

"Either he gets to be able to publicly point to an opinion that says Jeb
Bush and other Republicans have been violating federal law, or he gets
permission to do the same himself and retain the moral high ground," said
Paul Ryan, an attorney at the Campaign Legal Center, which asked the FEC to
say the activities Elias floated are illegal.

The implication wasn't lost on Spies, who filed a comment saying the
activities should be allowed and the proposed rationale for prohibiting
them was so broad that it would apply not only to super PACs but also to
charities, namely the Clinton Global Initiative.

"Hillary Clinton's lawyers asked questions they thought were cleverly
worded to force the commissioners to comment on activity similar to what
some of the super PACs supporting Republican candidates are doing," Spies
told POLITICO. "It would also taint everything that these nonprofit
organization do."

Elias rejected the suggestion that he was working on Clinton's behalf,
pointing to Carlos Lopez-Cantera, a Republican senatorial candidate in
Florida who he says followed the same path with a super PAC.

"The fact that some of what we're asking about was first seen in Republican
presidential circles doesn't allay the concern that we're not going to see
the same activity in House and Senate elections," Elias said in an
interview before yesterday's meeting. "Either the FEC will say that this
conduct is not permissible, at which point presumably neither side will
engage in it, or they will say that it is permissible, at which point both
sides will engage in it. But what's not tolerable is to have one party's
candidates and super PACs operating under one set of rules and the other
side operating under a different set of rules."

But the outcome on Tuesday was not so straightforward.

The often-deadlocked commission only managed to agree on five of the dozen
questions Elias raised. They were unable to reach a majority decision on
whether a potential candidate could form a super PAC before announcing his
or her campaign, or whether a potential candidate could share advance plans
with a super PAC before jumping into the race. They also couldn’t agree on
whether super PACs could film footage of potential candidates with an eye
toward using it in ads.

Four of the six commissioners did vote to let candidates attend fundraisers
with as few as two donors. Steven Walther, one of the Democratic
commissioners, joined with the Republicans to approve the measure after a
contentious six-hour meeting in which Elias threatened to sue the FEC if it
failed to vote on the matter.

The vote on Tuesday would seem to allow candidates to speak at super PAC
fundraisers even if only two or three people show up, as long as the event
bears some of the hallmarks of a larger fundraising event, such as written
invitations and prepared remarks by the candidate.

But the FEC is still working out the exact language of the opinion, and
it’s impact is unclear. The FEC aims to finalize the language by Friday.

Senate Majority PAC declined to say immediately how it would proceed,
saying it would wait for the FEC to issue its final opinion.

"While we had hoped the FEC would answer all of our questions, we are
pleased that the Commission provided answers to seven of the twelve we
submitted,” Shripal Shah, a Senate Majority PAC spokesman, said in an email
to POLITICO. “We believe today's decision will create a somewhat more level
playing field moving forward, and we look forward to reviewing final
written guidance later this week."

Elias has asked the FEC for guidance like this 50 times, he said toward the
end of the drawn-out meeting.

Elias raised his voice with two of the Democratic commissioners, Walther
and Ann Ravel, late in the afternoon after Walther suggested postponing a
vote on two of his questions. “My clients have to move on with their
fundraising,” he said. “We’re in the middle of the cycle.”

While Senate Majority PAC wouldn’t comment on its plans going forward,
Elias indicated during the hearing that the super PAC was prepared to move
forward with the kind of fundraisers it had described in its question as
soon as the FEC signed off on it.

“We’ve proposed the specific facts that we’re going to engage in,” he said.

Isaac Arnsdorf is a POLITICO reporter.
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Eric D. Schwerin
eschwerin@rosemontseneca.com

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