Will The First Prison Sentence over Super PAC Shenanigans Matter?

On Friday, June 12, Tyler Harber was sentenced to serve two years in prison, making him the first person to be convicted and jailed for unlawfully coordinating activities between a super PAC and a federal campaign.

The sentencing serves as a caveat to congressional and presidential campaigns and their allied groups about the need to ensure compliance with federal campaign election laws in the run-up to the 2016 election.

In 2012, Harber assisted Republican candidate Chris Perkins in his contest against Democratic incumbent U.S. Rep. Gerry Connolly (D-Va.) in the state’s 11th district. While working on Perkins’ campaign, Harber was also operating for a super PAC called the National Republican Victory Fund (NRVF). The super PAC spent $325,000 attacking Connolly.

Harber’s connection to the super PAC went undiscovered until after the 2012 election.

During the campaign, however, some became suspicious of Harber. Campaign workers noted that he sometimes charged items to his consulting firm’s credit card rather than the campaign’s. Also, Terry Wear, the head of the Republican Party in the 11th district, caught Harber in a lie about cooperating with the National Republican Congressional Committee and the Romney-Ryan campaign.

Wear began investigating the NRVF after the group sent out an e-mail soliciting $841,000 – a large sum for a relatively minor congressional race. As Wear looked into the NRVF, Harber – through an alias named Paul Connor — threatened Wear with legal action for alleging that the group was running a scam.

Wear alerted the authorities about the group in late 2012, kicking off an investigation by the FBI. Investigators uncovered that Harber had taken $138,000 from the super PAC for personal and family expenses.

In February 2015, Harber pleaded guilty on two counts: lying to the FBI about his role as Perkins’ campaign manager, and coordinating efforts between the campaign and the independent political group.

While Harber admitted he knew he was acting illegally, he stated he was only imitating what he saw others doing. He confessed, “I got caught up in what politics has become,”

This confession raises questions over what qualifies as “coordination” in the Citizens United era, when many major candidates have close ties to super PACs formed exclusively to help them get elected.

On the Democratic side, for instance, Hillary Clinton‘s official campaign absorbed many of the leading staff members of the Ready for Hillary super PAC.

On the Republican side, many candidates’ closest aids are joining their candidates’ respective super PACs. Jesse Benton, an adviser to Rand Paul, joined Paul’s most supportive super PAC, America’s Liberty PAC, the day before Paul announced his candidacy. Keith Gilkes, Gov. Scott Walker‘s former campaign adviser and chief of staff, is joining the pro-Walker Unintimidated PAC.

The candidate drawing perhaps the most scrutiny has been Jeb Bush. Bush postponed officially declaring his candidacy in order to defer having to comply with federal campaign finance regulations. During this so-called “exploratory period,” Bush helped fundraise for his Right to Rise PAC, which already has netted tens of millions of dollars.

Ann Ravel, vice chairwoman of the Federal Election Commission (FEC), which enforces federal campaign finance rules, called it “absurd” that figures engaging in blatant campaign-related activities are able to circumvent regulations until they formally announce their candidacy and submit their paperwork to the FEC.

Some are optimistic that the recent conviction and prison sentence will scare campaigns and independent groups into compliance.

In a statement, Leslie R. Caldwell, assistant attorney general in the Justice Department’s Criminal Division, said, “The significant prison sentence imposed on Tyler Harber should cause other political operatives to think twice about circumventing laws that promote transparency in federal elections.”

However, there are several reasons to doubt that this case will significantly alter the status quo.

First, Harber was hardly a smooth operative, and Perkins, a first-time candidate in an uncompetitive race, did not carefully vet the young political strategist. Wear, the head of the party in Virginia’s 11th district who brought Harber to the authorities’ attention, called Harber an “incompetent crook.”

Second, the FEC’s definition of “collaboration” is not a loose concept open to broad interpretation and application, but a narrowly defined one. It prohibits candidates and their official campaigns from cooperating regarding messaging and expenditures. It does not prohibit candidates from soliciting funds for a super PAC, so long as the requested amount is no more than $5,000 – the maximum amount that can be given to a regular, candidate-linked political action committee.

The FEC’s definition fits with the Supreme Court’s conception of the nature of “independent expenditures,” meaning money spent by groups not organizationally connected to a campaign. The Supreme Court held that political messages by independent groups are constitutionally protected speech and “do not give rise to corruption or the appearance of corruption.”

In other words, to match the Supreme Court’s narrow understanding of corruption – strictly quid pro quo — the FEC adopted a narrow definition of coordination, one that entails a campaign or independent group dictating to the other how to manage its money or messaging.

Or, put another way, according to the Supreme Court and FEC, so long as campaigns and independent citizens and residents do not tell each other what to do, people’s speech is protected, corruption is avoided, and the political process keeps its integrity.

Yet it can be difficult to prosecute or even identify coordination of this limited kind. For instance, experts on campaign finance law were torn in 2011 over whether a violation occurred when Rick Perry’s campaign used footage it took from a super PAC in a TV advertisement.

Working in the other direction, Mitch McConnell released stock footage of the senator that was later included in an advertisement by an allied super PAC – a practice deemed permissible because McConnell’s campaign did not advise the group on how to use the footage.

As for financial coordination, the FEC looked into a complaint that Ready for Hillary rented a list of donors from Hillary Clinton’s dormant Senate campaign, but it determined in February 2015 that no violation occurred because Clinton had not yet become an official candidate.

Finally, the Harber case is unlikely to serve as a precedent because of the FEC’s gridlock. The FEC is split: its three Democratic and three Republican commissioners seldom cooperate, and the commission requires four votes to agree to launch an investigation and enforce federal campaign finance laws.

Ann Ravel laments that this gridlock is hampering enforcement. It could not agree to pursue, for instance, evidence that the conservative nonprofit group, Crossroads GPS, had violated the terms of its tax-exempt status by devoting a majority of its expenditures to political activity.

Indeed, it was the Department of Justice, not the FEC, that successfully prosecuted Tyler Harber. Ravel expressed dismay that her commission did not participate in the case despite it clearly falling under the FEC’s jurisdiction.

While she claims that “[t]he likelihood of the laws being enforced is slim” because of the body’s dysfunction, her Republican colleague, commissioner Lee Goodman, disagrees.

“Congress set this place up to gridlock,” he has said. “This agency is functioning as Congress intended. The democracy isn’t collapsing around us.”

Given the uniquely brazen and incompetent nature of Harber’s criminal activity, the narrow conception of what constitutes coordination on expenditures and messaging, and the dysfunction at the FEC, it is doubtful whether enforcement of the country’s weak and flaunted campaign finance laws is bound to increase.

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