Clinton Breaks the Barriers of Campaign Finance Law

Hillary Clinton’s campaign and the Super Political Action Committee (PAC) Correct the Record (CTR) have been coordinating in flagrant violation of campaign finance regulations since this time last year, exploiting “loopholes” they claim to have found in the Federal Election Commission (FEC) Super PAC regulations.

Whether or not these loopholes exist is irrelevant; the Clinton campaign will act as if they do exist for the remainder of the election. And in doing so, the campaign will set a precedent that will be hard to reverse in the future.

[A] May 12, 2015 article from The Washington Post described the thought process behind the “loopholes”:

Correct the Record believes it can avoid the coordination ban by relying on a 2006 Federal Election Commission regulation that declared that content posted online for free, such as blogs, is off limits from regulation. The “Internet exemption” said that such free postings do not constitute campaign expenditures, allowing independent groups to consult with candidates about the content they post on their sites.

In theory, this would appear to be a legitimate loophole in the regulations. However, further down in the article, we find that:

FEC rules specify that online activities are exempted from campaign finance rules if they are conducted by “uncompensated” individuals, campaign finance lawyers noted. It is unclear how Correct the Record, whose staff will be paid, plans to navigate that restriction.

CTR clarified that they were relying on a different exemption (while not forswearing the Internet exemption) for CTR specifically in May 2015. In the intervening year the PAC has come full circle back to using CTR social media presence under the new project umbrella of Break the Barriers.

[B]reak the Barriers’ mission statement lays out very clearly that the PAC will be blatantly breaking the law:

Correct The Record will invest more than $1 million into Barrier Breakers 2016 activities, including the more than tripling of its digital operation to engage in online messaging both for Secretary Clinton and to push back against attackers on social media platforms like Twitter, Facebook, Reddit, and Instagram.

Let’s be clear here: the PAC is investing $1 million into a campaign to fight back against perceived smears against Clinton on social media. This will be a coordinated online strike force and a subsidiary of the Clinton campaign, as The Sunlight Foundation’s Libby Watson pointed out last month:

This is more than just manipulating the language of the regulations. This is overt subversion of the rules on compensation for this social media “activism.” They’re daring the FEC to do something about it.

[U]nfortunately, the FEC almost certainly will do nothing about it. The Commission has been thoroughly defanged over the past decades. It has no power left.

This will lead to the eventual and certain precedent in campaign finance law that will open the door to these abuses becoming codified into tradition and eventually law. As Larry Noble put it on November 21, 2015:

Team Clinton is seemingly playing the odds that the feckless FEC will never challenge it and that the public will not notice the campaign’s contribution to the destruction of our campaign finance laws…..

…when you create loopholes that undermine the law…. you have then become the leader of the herd in a stampede over what remains of our campaign finance laws.

The precedent is subtle and dangerous to our democracy in the long run. If you’re a person of particular power and influence who doesn’t want to be constrained by laws and regulations designed to ensure that the corrupting influence of megadonors remains partially in check, just ignore those laws and regulations.

Nobody will do anything about it.

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Thanks to Carl Beijer for showing me the Larry Noble op-ed and inspiring this post.

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