The news media has already engaged in rampant speculation regarding the potential candidates from both parties in the 2016 presidential election. Inextricably tied to the talk of political campaigns is the public discussion about campaign finance, particularly with reference to political action committees (PACs). In the wake of the Citizens United decision, the public has perceived that so-called SuperPACs can raise and disburse limitless funds with little or no oversight. Often the subject of ridicule and satire, Stephen Colbert once famously joked with his FEC lawyer Trevor Potter regarding his Colbert PAC that he could not name anyone who had ever gone to jail for breaking the laws regarding PACs. This may soon change.
The DOJ – through its Public Integrity Section and that section’s Election Crimes Branch – announced its first successful criminal prosecution for campaign finance coordination between an independent expenditures PAC and a candidate’s political committee. Tyler Eugene Harber pleaded guilty to a two-count criminal information that charged him with willfully making and causing to be made coordinated federal election contributions in violation of the Federal Election Campaign Act (FECA), and with making false statements under 18 U.S.C. § 1001(a)(2).
In order to qualify as a SuperPAC, a PAC must make expenditures independent of any candidate by not acting “in concert or cooperation with or at the request or suggestion of such candidate, the candidate’s authorized committee, or their agents, or a political party committee or its agents.” 2 U.S.C. § 431 (17); 2 U.S.C. § 441a(7)(B). Critics of SuperPACs often derided this independence as virtually impossible to police and certainly not a reality in practice when, as here, a campaign manager with ostensibly close ties to a candidate for federal office establishes an independent-expenditures-only PAC.
While it is theoretically possible to have close ties to a candidate and still establish a SuperPAC, here Harber admitted to making and causing to be made “$325,000 in coordinated expenditure contributions” by purchasing advertising critical of the opposition candidate. By concealing this coordination, the PAC and campaign committee filed false reports with the FEC. Compounding the problem, when interviewed by the FBI about his involvement with the PAC, Harber made false statements, which served as the factual predicate for the § 1001 charge.
This prosecution marks the first time someone has been held accountable for making coordinated campaign contributions. While there may still be connections between a candidate and someone who establishes an independent-expenditures-only PAC, this case serves as a reminder that there must be separation between decision-making, without which spending could be deemed a contribution to the candidate, subject to FECA’s statutory caps. This prosecution also provides a reminder that cannot be given often enough: Honesty (or silence) is the best policy when discussing a crime with federal investigators.