Policing the Wall

Since the Supreme Court’s 2010 ruling in Citizens United v. FEC, much has been made of the corrupting influence of big money in politics — and rightfully so. The decision allowed donors to circumvent contribution limits by giving to “independent” political action committees (PACs), which could then spend unlimited amounts in service of candidates, so long as PACs and candidates did not “coordinate” their strategy or messaging.

While supporters of the ruling argued that the wall between PACs and candidates could be effectively policed by regulators, any such optimism was dealt a fatal blow this April by a most unlikely executioner: an administrative law judge in Yavapai County, Arizona.

The case involved allegations of strategic coordination between Arizona Attorney General Tom Horne and his former aide, Kathleen Winn, who ran an independent PAC supporting Horne in his 2010 run for Attorney General. Emails and telephone records gathered by the FBI revealed that Horne and Winn were in constant contact as her PAC finalized an attack ad against Horne’s Democratic opponent, Felecia Rotellini, that many credit with securing Horne’s narrow victory.

The arrangement also exemplified the classic revolving door between political staffs and purportedly independent PACs. Winn had worked for Horne’s campaign through the Republican primary, but she left his team to form a single-candidate advocacy group whose sole purpose was helping Horne win. After Horne’s victory in the general election, Winn — whom Horne referred to on election night as “our secret weapon” — was hired as Horne’s new community outreach aide.

Despite this significant evidence, Judge Tammy Eigenheer ruled that Horne did not violate Arizona’s prohibition on strategic coordination between candidates and independent PACs. The decision came as a blow to good government advocates because it proves that the threat of state prosecution is just as toothless as oversight by the Federal Election Commission or federal prosecutors. In fact, the Yavapai County case was filed only after the U.S. Attorney for Arizona decided not to pursue federal charges against Horne — a decision typical of the federal government’s laissez-faire approach to coordination.

For example, an FEC investigation in 2009 uncovered six months of emails between a corporate PAC and the campaign team of former Michigan congressmember Joe Schwarz specifically discussing advertising strategy. In one email, Schwarz’s campaign director even provided the content for an ad that the PAC ran on local radio stations the following week. Despite this “smoking gun,” the FEC fined Schwarz and the PAC just $2,500 each.

Given the lack of federal enforcement, legal analysts had hoped that state civil proceedings like Horne’s could provide a meaningful check on illegal coordination. Unlike criminal charges, which must be proven beyond a reasonable doubt, civil proceedings apply a lower burden of proof and relaxed evidentiary rules, and can carry treble damages. But Judge Eigenheer’s ruling that the prosecution’s strong circumstantial case was insufficient to sustain a finding of guilt even in a civil trial will surely deter state and federal prosecutors from pursuing similar cases in the future.

And so, with the FEC, federal prosecutors, and state law enforcement unable or unwilling to ensure the independence of PACs, what options are left? A constitutional amendment is needed to limit corporate personhood and restore the government’s authority to regulate money in the electoral process, but the prospects for passing such an amendment appear limited in the current political climate. Nonetheless, two measures should be adopted immediately to specifically address the coordination problem:

• Federal and state governments should enact and enforce a one-year waiting period for individuals trying to move between politicians’ staffs and single-candidate PACs. Such limitations, similar to those for lawyers and military contractors transitioning between the public and private sectors, will stop (or at least slow) the revolving door.

• Steps should be taken to encourage witnesses with personal knowledge of coordination to divulge this information. Examples could include whistleblower protections and monetary rewards for disclosures. The federal False Claims Act allows private citizens to file “Qui Tam” suits against contractors who defraud the government, and whistleblowers can receive a portion of any recovery. There can be no greater fraud against the government that the manipulation and corruption of the electoral process, and coordination whistleblowers should be rewarded accordingly.

These measures will help regulators police the wall between candidates and so-called independent groups. While no panacea, they are important first steps toward reducing the corrupting influence of big money in the political process.

Leif Dautch is a Santa Barbara native currently serving as a deputy attorney general for the California Department of Justice.