Restrictions On SuperPACs Not Super Clear

Sep 3, 2011

Consultants have been practically tripping over each other to launch superPACs backing Texas Gov. Rick Perry. However, some prospective donors may find presidential superPACs are a gray area.

By now there's a superPAC independently supporting every major presidential candidate. Three of these groups have surfaced to promote Perry. In California, Bob Schuman says he was ready to go before Perry was.

"He wasn't going to do anything until after Aug. 6. Well, I knew that the Iowa straw poll was Aug. 13," he says, "and I thought, let's get a group together and let's go, see if we can impact that thing."

So Schuman's group, Americans for Rick Perry, ran a write-in campaign.

Perry also got a boost on TV from a superPAC calling itself Jobs for Iowa. That group hasn't been heard from since, but yet another superPAC has emerged, called Make Us Great Again.

The group's leader is Mike Toomey, Perry's former chief of staff. Its top money man is Dallas businessman Brint Ryan, a bundler for Perry's gubernatorial campaigns.

A spokesman for Make Us Great Again declined to speak on the record.

The Line Between SuperPACs, Campaigns

Schuman says the two groups have worked out a rough coordination. Make Us Great Again will do big-dollar media campaigns, while his group works on voter mobilization.

"What we're trying to do is step back and look at what we think the campaign would be doing and how we might best be able to help in the longer run," Schuman says.

That is where things can get tricky. The Federal Election Commission says a superPAC absolutely cannot coordinate with a candidate's campaign. So lawyers get nervous when a superPAC is run by former aides to the candidate, which is the case with President Obama, Jon Huntsman and Mitt Romney — as well as with Perry and Make Us Great Again.

Campaign finance lawyer Ken Gross says he wants commitments from presidential superPACs before his clients write any checks.

"We get written representations from the superPAC that it will operate totally independent of the campaign," he says.

Gross says superPACs are such a new concept, with such vague ground rules, that a donor can't be too careful.

"[If] there is any coordination between the superPAC and the campaign, the house of cards falls," he says.

Rules For Donating To State Politicians

There's another complication, too, beyond what the FEC says. This year another federal regulator imposed new rules. The Securities and Exchange Commission now bars finance firms and their executives from doing business where they contribute to support state and local politicians — politicians like Perry, no matter what office he's running for.

This so-called pay-to-play rule doesn't affect any of Perry's rivals.

Gross says it's conceivable that the Securities and Exchange Commission wouldn't see any difference between giving to Perry's campaign and giving to the Perry superPACs.

"So we can't say just because the Federal Election Commission has viewed independence or an interpretation in such a way, that they will necessarily at the Securities and Exchange Commission look at it the same way," he says.

The pay-to-play rule is expected to put a crimp in Perry's campaign fundraising and likely will hurt the pro-Perry superPACs, too.

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