When the U.S. Supreme Court set the stage for the creation of so-called “Super-PACs” – independent groups that can spend unlimited money and raise corporate and union dollars in unlimited amounts to affect Federal elections – it did not mean that existing regulations of the Federal Election Commission banning “coordinated communications” between independent groups and official campaigns were set aside. In fact, the legality of the activities of such groups are absolutely founded on the notion of independence from control or coordination with official federal candidate campaign committees, according to the Supreme Court. So the FEC’s “non-coordination” regulations are a very important consideration in the realm of “Super-PACs.”
Last week, the campaign manager for Congressman Brad Sherman, Scott Abrams, filed a complaint against 30th Congressional District rival Congressman Howard Berman, and his campaign committee, alleging illegal coordinated communications between those Respondents and the independent Super-PAC supporting Berman, through Mr. Jerry Seedborg, a Long Beach-based political consultant and also publisher of the “Voter Guide Slate Card.”
The Complaint alleges that from January 1 to March 31, 2012, Seedborg was paid $132,300 by the Berman for Congress committee for various campaign services, according to FEC disclosures. However, during the same period, the independent Super-PAC supporting Berman also incurred $23,595 to Seedborg’s slate mail business. The Complaint alleges that Seedborg’s consulting business and the slate mail company he operates are for the FEC’s legal purposes one and the same. Allegations are made that both companies are owned by Seeborg, operate out of the same office in Long Beach, and have the same telephone number. Thus, Seedborg can be claimed to be a “common vendor.” (The FEC regulations do in fact treat the owners, officers and employees of a campaign vendor as a single unit.)
So in essence, the Complaint rests on a rule that bars a person who has knowledge of an official campaign’s inner strategy, such as voter group targeting, from going to work for an independent Super PAC. The rationale for the ban is that such an activity breaks the claim of independence of the Super PAC, and when a Super PAC is not independent, it can no longer raise unlimited funds in unlimited amounts and from union and corporate sources, rather, it becomes subject to the contribution limits imposed by the FEC on candidate committees, and union and corporate contributions are banned. The FEC has built in some safeguards so that vendors can be considered as not common — but one of the factual requirements is that the vendor has not provided any common services for a full 120 day period. The Sherman complaint states that FEC records themselves demonstrate that the services were performed by Seedborg almost simultaneously, thus busting the 120 “cooling off” period safe harbor.
Super PAC coordination claims are new territory in a sense for the FEC, but the underlying logic of regulation is not. So called “independent expenditure committees” (ones that have to raise funds within the Federal limits generally applicable to candidates) have existed since the creation of the Federal Election Commission in the 1970s, and there is a pretty strong body of law and regulations to work from on Super PAC regulation. It will be interesting to see how the complaint is handled by the FEC, and to understand the Berman response.