Email Suggests Illegal Coordination Between Clinton Campaign and Super PACs

Dan Riehl,

A newly released email via WikiLeaks from Hillary Clinton campaign manager Robby Mook to the candidate herself, Hillary Clinton, suggests the campaign crafted a formal strategy to coordinate with at least two super PACs, Correct the Record and Priorities USA, potentially violating political campaign laws.

Madame Secretary,

Attached is a memo Marc prepared on some issues related to superpacs and
state parties we wanted to discuss with you next week, specifically (1)
coordination of rapid response with Correct the Record; (2) coordination of
some ads with Priorities; (3) use of state parties to defray costs; and (4)
suing the FEC to compel action against Bush and Republican superpacs.
I’ve talked with Huma and Alex about finding a time that might be
convenient for you. This is probably best to do in-person, but if your
schedule doesn’t permit, we’ll arrange for a call.
Let us know if you have any questions in advance!

Robby

The email comes with a memo as a pdf attachment addressing how the campaign believed it could use a reading of current law to coordinate legally. The memo, in part, outlines the strategy, as such:

II. Coordinated Non-Express Advocacy Ads with Super PAC

As noted above, federal law prohibits Super PACs from coordinating with campaigns on public
communications that include words of express advocacy or the functional equivalent of express
advocacy or that republish campaign materials. However, the plain language of FEC regulations
suggest that a campaign may collaborate with a Super PAC on communications that lack express
advocacy or its functional equivalent, do not republish campaign materials, and air more than 120
days before the primary in each state.1 We believe that such collaboration is legally permissible.

Under this theory, the campaign could collaborate on television ads sponsored by Priorities USA
Action more than 120 days before the primary in each state, as long as the ads lacked express
advocacy, its functional equivalent, or republished campaign materials. The advertisements
would focus on a public policy issue; praise your position on the issue or criticize an opponent’s;
and urge viewers to take an action in support of your position (or in opposition to your
opponent’s). The advertisements would not focus on your qualifications or fitness for office, and
would not refer to elections, candidacies, political parties, or voting by the general public.
Finally, while your campaign may have significant input on such a communications program,
Priorities ultimately would have to direct and control it.

While we believe that such a program is legally permissible, it would be breaking new ground –
more so than what CTR is doing. As evidenced by the press scrutiny of CTR’s announcement,
the media reaction to such a program could be toxic. In 2011, the FEC divided 3-to-3 on a
request by American Crossroads to engage in a similar coordinated issue advocacy program; that
division between the commissioners has persisted over the past four years. The FEC cannot find
a violation without the support of four commissioners, so the ongoing deadlock reduces (though
by no means eliminates) the likelihood of adverse action by the FEC. However, the Department
of Justice and both houses of Congress retain separate authority to investigate alleged campaign
finance violations, and there is no indication of what their views are on this issue.

It would appear they may have been willing to bend current campaign laws to the point of risking a court test to determine whether or not they may actually be breaking them.

Yesterday, The Intercept website reported that Neera Tanden, President of the Center for American Progress had expressed concerns in May over the campaign’s coordination with at least one Super PAC: “That’s fine. But skirting if not violating law doesn’t help her INMHO”.

More via The Intercept:

But as a recently released email chain shows, even Tanden was concerned in May last year that plans of a pro-Clinton Super PAC to directly coordinate with the campaign were “shady” and “skirting if not violating [the] law.