When a Super PAC Acts Like a Campaign

By doing the sort of advance work traditionally left to campaign staff, CARLY For America is redefining what makes a super PAC “independent.”

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Emma Roller
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Emma Roller
Sept. 10, 2015, 6:59 a.m.

On a re­cent swing through Iowa, Carly Fior­ina kept a rig­or­ous cam­paign sched­ule. At six cam­paign stops over the course of two days and 300 miles, Fior­ina spoke in front of Re­pub­lic­an crowds at three col­leges, an ice cream par­lor, a vine­yard, and an out­door tiki bar. And at each event, staffers work­ing for a su­per PAC that sup­ports Fior­ina’s can­did­acy were one step ahead of the cam­paign.

Tra­di­tion­ally, a polit­ic­al cam­paign will have ded­ic­ated staffers on the ground to “ad­vance” the can­did­ate, ar­riv­ing at an event space be­fore the can­did­ate shows up, mak­ing sure the room is dec­or­ated with cam­paign swag, and set­ting up a table where at­tendees can sign up for the all-im­port­ant email list.

At the events in Iowa, Fior­ina’s cam­paign had no vis­ible ad­vance pres­ence. There was, however, a well-or­gan­ized ad­vance team await­ing Fior­ina’s cam­paign at every stop, cour­tesy of a su­per PAC called Con­ser­vat­ive, Au­then­t­ic, Re­spons­ive Lead­er­ship For You and For Amer­ica—bet­ter known as CARLY For Amer­ica.

At a typ­ic­al Fior­ina cam­paign stop, a CARLY For Amer­ica staffer was sta­tioned at a table out­side of the event space to sign up at­tendees for the su­per PAC’s email list. An­oth­er staffer handed out CARLY For Amer­ica stick­ers to at­tendees as they ar­rived. When Fior­ina and her staff entered the event, they were usu­ally met by a room covered in red “CARLY” signs and tables covered in pro-Fior­ina lit­er­at­ure, all pro­duced by CARLY For Amer­ica.

If a reg­u­lar voter at­ten­ded every cam­paign stop and handed out fly­ers telling someone to vote for that can­did­ate, the cost of print­ing would count as an in-kind ex­pendit­ure. Both Fior­ina’s cam­paign and CARLY For Amer­ica main­tain that the work be­ing done by the su­per PAC does not con­sti­tute an in-kind con­tri­bu­tion to the cam­paign, but an in­de­pend­ent ex­pendit­ure. But elec­tion-law ex­perts say that, in ef­fect, the su­per PAC is provid­ing a ser­vice by staff­ing the events.

The Fed­er­al Elec­tion Com­mis­sion defines an in-kind con­tri­bu­tion as “goods or ser­vices offered free or at less than the usu­al charge.” That could mean any­thing from a com­puter, to of­fice fur­niture, to mer­chand­ise, to ca­ter­ing at an event—pretty much any good or ser­vice giv­en to the cam­paign that has value. It is il­leg­al for someone to give a cam­paign goods or ser­vices that ex­ceed $2,700—the lim­it for dona­tions to fed­er­al can­did­ates—and PACs that ac­cept money from cor­por­a­tions or labor uni­ons can­not provide any in-kind con­tri­bu­tions to the cam­paign.

This dif­fer­en­ti­ation between in-kind and in­de­pend­ent ex­pendit­ures can lead to some con­fus­ing op­tics. It was Fior­ina’s birth­day on Sunday, and at a cam­paign stop in New Hamp­shire she was presen­ted with a birth­day cake. The cake was dec­or­ated not with her cam­paign’s logo, but the su­per PAC’s logo. At a Labor Day parade the next day, a video sent out by Fior­ina’s of­fi­cial Twit­ter ac­count shows the can­did­ate walk­ing down the street, sur­roun­ded by sup­port­ers in CARLY T-shirts, wav­ing CARLY signs. There was no vis­ible cam­paign swag from Fior­ina’s pres­id­en­tial cam­paign, so a cas­u­al ob­serv­er could reas­on­ably as­sume that the paraphernalia was com­ing from the cam­paign it­self.

Sarah Is­gur Flores, Fior­ina’s deputy cam­paign man­ager, ac­know­ledged that the cam­paign does not do as much mer­chand­ising at events as CARLY For Amer­ica does, but said the su­per PAC’s ad­vance work does not con­sti­tute an in-kind con­tri­bu­tion be­cause it is not co­ordin­at­ing with the cam­paign.

“The is­sue with su­per PACs is nev­er that they would make an in-kind con­tri­bu­tion. It would be co­ordin­a­tion,” Flores said. “It’s the co­ordin­a­tion that’s the is­sue.”

Larry Noble, who served as the FEC’s gen­er­al coun­sel from 1987 to 2000 and now works at the Cam­paign Leg­al Cen­ter, dis­agrees with that as­sess­ment. Noble said that the su­per PAC’s ad­vance work wouldn’t be a prob­lem if Fior­ina’s cam­paign were per­form­ing sim­il­ar func­tions at Fior­ina’s events, but that it ap­pears as if the su­per PAC is ful­filling a lar­ger role with­in the cam­paign by “provid­ing the in­fra­struc­ture for the event.

“That’s the type of thing that the cam­paign would have to pay for, but the su­per PAC is do­ing,” Noble said.

Flores, who worked for CARLY For Amer­ica be­fore join­ing Fior­ina’s cam­paign, said the cam­paign tries to ad­vance as many events as it can, but ad­ded that the sup­port they ob­serve from CARLY For Amer­ica staffers is “fant­ast­ic.

“It de­pends on the event, but yes, we have staff that nor­mally goes to things ahead of time,” Flores said. “We’ll con­tin­ue do­ing our thing, but we’re thrilled that they’re do­ing theirs.”

Un­like in 2012, when su­per PACs mostly spent money on tele­vi­sion ad­vert­ising, su­per PACs are start­ing to get much more per­son­al with their spend­ing this cycle. Leslie Shedd, CARLY For Amer­ica’s spokes­wo­man, said the su­per PAC’s staff finds out about Fior­ina’s cam­paign events through pub­lic list­ings, then sets up a table to sign up at­tendees for its email list and dis­trib­ute swag.

“What you’re see­ing now is the mod­ern cam­paign,” Shedd said. “This is how cam­paigns are evolving and mov­ing, and I think that we just kind of latched onto that.”

Shedd said the su­per PAC de­cided the best way it could help is with on-the-ground work, which she said is “one of the most ex­pens­ive and time-con­sum­ing as­pects of any cam­paign.

“For a can­did­ate like Carly Fior­ina, who is a polit­ic­al out­sider, who does not have the polit­ic­al base that a lot of these oth­er kind of ca­reer politi­cians in the race have had, what we de­cided as an out­side group that the best thing that we could help to provide is ground-game sup­port,” Shedd said.

When asked to cla­ri­fy wheth­er or not the su­per PAC provides those ser­vices so that the Fior­ina cam­paign does not have to worry about them, Shedd balked.

“No, I would def­in­itely nev­er say that be­cause that would be co­ordin­at­ing,” Shedd said. “What I have told you is that we have as­sessed the situ­ation and we have de­term­ined that one of the ways that we can help is by help­ing with the ground game.”

The FEC and the De­part­ment of Justice are still map­ping out the bound­ar­ies of what makes an in-kind con­tri­bu­tion il­leg­al. So far, there has been little pre­ced­ent set, but there have been a few cases that shed light on how the gov­ern­ment thinks about the is­sue. In 2012, after the Re­pub­lic­an su­per PAC Amer­ic­an Cross­roads used foot­age cre­ated by Sen. Rob Port­man’s reelec­tion com­mit­tee in its own tele­vi­sion ad, the FEC ruled in fa­vor of Cross­roads, and said re­pub­lish­ing the cam­paign’s foot­age did not con­sti­tute an in-kind con­tri­bu­tion. This past June, a Vir­gin­ia man was sen­tenced to two years in pris­on for spend­ing $325,000 worth of su­per PAC funds in co­ordin­a­tion with a cam­paign com­mit­tee for a can­did­ate in Vir­gin­ia’s 11th Con­gres­sion­al Dis­trict.

CARLY For Amer­ica is not the only su­per PAC to push the defin­i­tion of in­de­pend­ent ex­pendit­ures this cycle. Three su­per PACs sup­port­ing former Texas Gov. Rick Perry have been prop­ping up Perry’s can­did­acy while his own cam­paign has had to stop pay­ing staffers in key primary states. And Cor­rect the Re­cord, an op­pos­i­tion-re­search firm led by prom­in­ent al­lies of Hil­lary Clin­ton, is ar­gu­ably tak­ing work off Clin­ton staffers’ hands by dig­ging up dirt on Clin­ton’s op­pon­ents.

Bob Bier­sack, a seni­or fel­low at the Cen­ter for Re­spons­ive Polit­ics, says the fact that all these su­per PACs are provid­ing ser­vices that so dir­ectly sup­port one spe­cif­ic cam­paign puts the lie to the idea that they are act­ing in­de­pend­ently.

“This pan­to­mime that we’re do­ing on so many levels now, pre­tend­ing that these or­gan­iz­a­tions are autonom­ous and in­de­pend­ent when com­mon sense de­fies that no­tion … is just an­oth­er ex­ample of the some­what ri­dicu­lous lengths that people will go to to main­tain the il­lu­sion of in­de­pend­ence,” Bier­sack said. “They really need it to be an il­lu­sion.”

Noble says this case is not so much about one cam­paign as it is an ex­ample of the FEC’s fail­ure to en­force spe­cif­ic stand­ards.

“This shows what hap­pens when the FEC doesn’t en­force the rules, and people just keep push­ing the lines to the point where, if what they’re do­ing is ac­cep­ted, it’s leg­al, there are no lines between su­per PACs and cam­paigns any­more,” Noble said. “Why even have a cam­paign com­mit­tee any­more?”

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