Last Friday, Tyler Harber was sentenced to two years in prison for illegally coordinating a candidate’s campaign for a U.S. House seat with a “super PAC.” That is, Harber managed candidate Chris Perkins’s campaign while at the same time running a political committee that raised money and ran ads in favor of Perkins. This is as understandable as coordination gets; its prohibition is fairly understood by campaign workers who do a modicum of research (no law degree required), and it was appropriate to prosecute Harber. Notably, under Harber’s leadership, the PAC “paid $138,000 to his mother’s company for work that was never performed and used $118,000 of that cash for personal expenses.” This is a particularly cut-and-dry case, but it is surprising that the press believes that it is somehow a “sharp warning” to federal campaigns nationwide. I don’t believe that’s true, and in fact it’s just the opposite.
The campaign finance reform community has made a great effort, particularly over the last few months, filing complaints with the Federal Election Commission (FEC) against various campaigns calling for investigations into alleged coordination between campaigns and PACs or other groups. The complainants often loop in the Department of Justice (DOJ), which prosecutes all federal criminal campaign finance cases (including Harber’s). The reformers’ accusations, however, arise from activity that is far less defined than Harber’s activity. Certainly, some within the FEC want coordination rules to reach farther than Harber’s scheme: in a publicity stunt earlier last week, FEC commissioners Ann Ravel and Ellen Weintraub filed a petition with their own agency to have a rulemaking about—among other things—coordination. The petition is sparse on detail, and says “[t]he Commission should… adopt rules that deem all spending by outside groups that effectively operate as ‘the alter ego of a candidate’ as coordinated spending.” I suppose that they will know it when they see it.
When it comes time to actually detail what “coordination” is beyond activities like Harber’s, things get very dicey. As I discussed a few months ago, the group Democracy21’s “model legislation” against coordination would lead to all sorts of censorship of basic political engagement if it became law. If a former campaign or office staffer of a candidate runs a PAC that favors that candidate, it is not necessarily coordination. If active campaign workers and PAC managers (or managers of civic groups and the like) meet together to discuss policies like gun rights or the environment, that’s not coordination, either. If a candidate attends a fundraising event for a super-PAC, even one that supports his candidacy, that simply doesn’t fit the bill. As frustrating as all of these activities are to some, coordination must be defined as specific control by a candidate or campaign staff over a PAC’s activities, or else the law threatens far too much of the democracy reformers claim to defend.
Because the Harber case was “unusually clear-cut,” his sentence is far from a sharp warning, much less warning at all. First, the case shows that there is a well-defined line for coordination and that the DOJ can ably prosecute people who cross it. Second, perhaps more importantly, it does not seem that the DOJ is interested in following commissioners Ravel and Weintraub (along with the reform community) into a hazy coordination bog. The DOJ is still (hopefully) sensitive to its scandalous prosecution of Senator Ted Stevens, which was exposed just a few years ago as rife with malfeasance. The DOJ is not the agency to start investigating and prosecuting baseless coordination theories, and they seem to understand this. Finally, the tangential facts around the case cannot be dismissed: although it did not directly lend to the coordination charges between the PAC and the Perkins campaign, the fact that Harber used the PAC’s money to enrich his mother showed this was far from simply a case of the average Joe or Jane making a few missteps in a campaign. Those prosecutions certainly happen—and shouldn’t—but Harber’s was not one of them.
Brian Svoboda, a campaign finance practitioner with far more experience than I, argues that the fallout from the Harber case could indeed spell a threat for smaller campaigns like House seats. I am particularly concerned with enforcement actions brought not only by the DOJ but also the FEC against unsophisticated political campaigns, PACs and grassroots groups alike, and I take his argument seriously. Nevertheless, so long as “coordination” does not reach the non-definition and overbreadth that many reformers support, I do not believe the Harber case is a sharp warning: rather, it’s a welcome sign that federal campaign finance law can punish bad actors without threatening those who are simply politicking.