Politics & Policy

The Super PAC Workaround: How Candidates Quietly, Legally Communicate


The Super PAC Workaround: How Candidates Quietly, Legally Communicate

Photo illustration by 731; Photographs by Getty Images (2)

When Republican Representative Cory Gardner of Colorado announced in March that he would run for the U.S. Senate, he knew he could count on backing from national Republican groups, including so-called super PACs. But he wasn’t allowed to talk to them directly. Federal election law prohibits campaigns from having contact with the super PACs and advocacy organizations that have come to dominate political spending since the U.S. Supreme Court’s 2010 Citizens United v. Federal Election Commission decision.

Those rules were intended to put a wall between candidates, whose fundraising is constrained by federal limits, and special interest groups allowed to spend unlimited amounts of money promoting candidates and issues. In practice, campaigns have found ways to talk to super PACs while staying on the right side of the law.

Gardner’s race illustrates how the system works. Within weeks of his declaring his Senate run, Americans for Prosperity, backed by billionaire brothers Charles and David Koch, told the Washington Post it would spend $970,000 on three weeks of television, radio, and online ads attacking incumbent Democratic Senator Mark Udall. That news was a signal that Gardner, who was unopposed in the primary, could hang back and focus on raising money—even as Democratic groups began running their own ads attacking him.

Then, the day after the Americans for Prosperity ads ended, another Koch-backed group, Freedom Partners, stepped in with three more weeks of commercials. In the first week of May, the political spending arm of the U.S. Chamber of Commerce announced it would put up another $1.1 million for a third wave of pro-Gardner ads, including some in Spanish.

On May 19 the Associated Press reported that American Crossroads, the super PAC co-founded by Karl Rove, and its issue advocacy arm, Crossroads GPS, planned to spend $2.3 million in Colorado. That flagged the ad buy to Gardner and outside groups aligned with his campaign, along with everyone else. Two days later, as required by law, filings showed up on the Federal Communications Commission website listing the times and stations where those ads would run, making it clear that there was a period leading up to the June 24 primary when there would be no outside ads. During that window, the Gardner campaign—which declined to comment for this story—ran its own ads.

“This election cycle, we’re seeing super PACs fully installed in virtually every competitive Senate race, and are now seeing them migrate down into competitive House races,” says Michael Toner, former chairman of the Federal Election Commission and a partner at law firm Wiley Rein. Figuring out how to work the system allows candidates to avoid wasting hard-won dollars when money from better-financed national groups is available. Outside groups look to candidates for cues about which issues they should highlight. “People have just become more sophisticated on how to do it,” Toner says. “How much information to put out, what kind of information to put out there.”

Earlier this year, the campaign of Senate Minority Leader Mitch McConnell of Kentucky posted footage on YouTube of the candidate grinning blankly into the ether. What looked like a hamfisted effort at going viral—one skewered by the Daily Show With Jon Stewart—was a legal way for the campaign to provide footage to outside groups to use in ads.

In April aides for the Democratic Senatorial Campaign Committee, which can talk directly to candidates but not to outside groups, tweeted a link from the website of New Hampshire Senator Jeanne Shaheen, the state’s Democratic incumbent, with what appeared to be an anti-Koch ad message. Two days later, Senate Majority PAC, the largest outside Democratic group, launched ads mirroring the same themes.

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Groups have also found ways to share opposition research, the centerpiece of most political ad campaigns. In 2012 a single outside group, American Bridge, became the hub for feeding information to liberal super PACs to use in ads against Republican presidential candidate Mitt Romney—but couldn’t pass it directly to Democratic candidates.

Last year, former Romney operatives founded a new group, America Rising, which incorporated a for-profit arm. That allows candidates to buy information collected by outside researchers that would otherwise be off-limits. According to FEC filings, McConnell’s campaign is among its customers; so is American Crossroads, which helps fund America Rising’s super PAC operations.

As they send signals to candidates, outside groups are also working together more closely to avoid duplicating their efforts. Top aides for the Chamber of Commerce, Crossroads, and other GOP groups speak at least weekly. That coordination goes back to 2010, when Republican operatives gathered at Rove’s house in Northwest Washington. In the years since, those links have “evolved and gotten tighter,” says Steven Law, president and chief executive officer of Crossroads.

Source: YouTube

In the runup to North Carolina’s Republican primary in May, American Crossroads and the Chamber agreed to split five weeks of Senate campaign ads on behalf of state legislator Thom Tillis, who was fending off a Tea Party challenge. Crossroads paid $1.6 million for the first four weeks. The day those ads went off the air, the Chamber came in with $900,000 for a week of ads in the same markets, according to data from Kantar Media’s (WPPGY) CMAG, which tracks campaign ad spending. Tillis won decisively, avoiding an expensive runoff. “It was joint polling, joint communication,” says Carl Forti, political director for American Crossroads and Crossroads GPS.

Republican fundraising has “forced us to be more efficient and more effective,” says Ty Matsdorf, a spokesman for Senate Majority PAC. Women Vote!, the advocacy arm of the group Emily’s List, and Patriot Majority USA, a nonprofit allied with the Senate Majority PAC, have lined up their plans to minimize overlaps in spending. In North Carolina, where incumbent Senator Kay Hagan is defending her seat against Tillis, the Democratic groups—which have put more than $9 million into the race—began buying ads on March 27, allowing Hagan to hold on to her own cash until June 10, when her first TV ads aired.

The pattern is repeating itself in the runup to the November midterm elections. In May the National Republican Senatorial Committee began buying ads for the fall; its filings on the FCC’s website provided a road map for outside groups. “You’re seeing all of the other groups start to layer in,” Forti says. “That’s a coordinated effort.” That helps candidates keep up with the national groups’ plans. On July 1, the Hill newspaper reported that American Crossroads and Crossroads GPS had reserved $20 million in fall advertising time. The buy tracked the NRSC schedule. American Crossroads reserved $5.5 million in Alaska and $3 million in Iowa, while Crossroads GPS staked out $5.1 million in North Carolina, $2.5 million in Arkansas, and $2.1 million in Louisiana. Candidates, including Gardner, know where to find the gaps. “It’s not quite like ordering sandwiches,” says Scott Reed, the chief political strategist for the Chamber of Commerce. “But it’s close.”

The bottom line: Candidates and outside groups have developed ways to get around rules prohibiting direct communication.

Mattingly is a reporter for Bloomberg News in Washington.

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