It’s been a busy few weeks for the Campaign Legal Center, flooding the Federal Election Commission (FEC) with complaints about potential presidential candidates and, this week, rapper Pras Michel, formerly of the iconic hip hop group the Fugees. Notably, Campaign Legal not only filed a complaint with the FEC for a civil investigation, but looped in the Department of Justice as well, asking for a criminal investigation. The effort brings to mind one of the Fugees’ hits, “Killing Me Softly.” Unlike the hit song, Campaign Legal’s effort will probably go largely unheard, but is nevertheless is another soft blow to political engagement, or free speech.
Pras Michel is wealthy, and likely conducts business and personal activity alike through legal entities like a Limited Liability Company (LLC) called SPM 2012 Holdings. This is wise, because it allows him to, without getting into the nitty-gritty, limit his liability in business, capitalize on tax deductions and the like. In 2012, SPM 2012 Holdings LLC donated $875,000 to a “super PAC” called Black Men Vote. A super PAC cannot give money to candidates but can spend unlimited amounts of money advocating for the election or defeat of candidates through television and other forms of advertising, and with corporate and union money to boot. Super PACs must disclose all contributions. Campaign Legal contends that the donation from SPM 2012 Holdings could constitute acting as a “straw donor” for Michel in an attempt to conceal his identity on FEC disclosure reports, which is illegal.
So, what’s there to do but send in the cavalry?
The absurdity of Campaign Legal’s endeavor is apparent in its own complaint. If Pras Michel was really trying to shield himself as a donor to Black Men Vote and not simply routing money from an account where he had the money available to give, he probably would not have donated a separate $350,000 from a personal account (that was disclosed as his own name) to the same organization. Although Campaign Legal and other groups have a certain fidelity to the “corporations aren’t people” chorus, one wonders if Black Men Vote would have found itself subject to an inaccurate reporting charge if it had simply listed Pras Michel as the contributor of the $875,000 rather than SPM 2012 Holdings LLC. (As Campaign Legal’s complaint notes, this would depend on whether SPM 2012 Holdings is a partnership or corporation for IRS purposes.) Finally, although I am not privy to the amount of web traffic driven by the Center for Public Integrity and media groups that have picked up on this story, thanks to their reporting it is almost indisputable that more people now know about Michel’s involvement with Black Men Vote than would have ever known if federal “disclosure” law had not allegedly been broken.
There’s a method to Campaign Legal’s legal madness. The more complaints it files with the FEC, the slower the FEC will act, adding to an inaccurate narrative that the agency is underfunded and powerless even though it’s simply wasting time on frivolous complaints. More pointedly, changes to federal election law or regulation are not likely to happen in Congress or at the FEC anytime soon, at least not to the liking of so-called “reform” groups. So, expansion (or outright manipulation) of existing law is the only game in town for the 2016 election cycle. Although complaints like this will likely not even go to court, they tie up groups like Black Men Vote with legal work and will, Campaign Legal hopes, scare other groups into complying not with the law itself, but reformers’ reading of it. That this “compliance” distracts Black Men Vote from its mission of getting black men to vote and other groups from their own preferred activities is of no consequence. By looping in the Department of Justice, Campaign Legal adds “teeth” to the law by threatening criminal liability for non-compliant political participation and lets groups know there’s not just one federal agency’s reading of the law with which they must comply. This administrative hopscotch also aims to get the IRS, SEC, and FCC on board with political regulation, too. That this red tape promises to lock out of the political process anyone who can’t afford the hourly fees of some of Washington’s most powerful campaign finance attorneys is also of no consequence.
Reformers would love new laws that would directly censor, or kill, political engagement. However, until that becomes feasible, killing speech softly complaint-by-complaint will remain a favored tactic of campaign finance reform.