A Question on Bernie Sanders and Super PACs


As readers of this site know, Super PACs are a major source of campaign spending that allow corporations and others to put much more money into a campaign than they can directly contribute. Much of the reporting about Super PACs is simplistic, incomplete or even misleading, and many members of the press don't seem to know anything about the rules.

Bernie Sanders has made Super PACs into a major plank of his argument against Hillary Clinton. He wants you to think that the very existence of those Super PACs is inherently corrupting. He doesn't mention that labor unions and progressive groups have their own Super PACs they use to support liberal candidates, or that Clinton doesn't actually have control over the ones raising money on her behalf. Sanders also boasts about having no Super PACs as an indicator of his ethical superiority to other candidates. 

In the February 11 PBS Democratic Debate, Sanders said the following:

When I heard Sanders talk about making the decision not to have a Super PAC, my ears pricked up. Something in that statement struck me as disingenuous, and I would love it if a reporter with deep understanding about Super PACs would press him on it.

Other than questions about the sources of their money, one of the biggest issues relating to Super PACs involves coordination with the candidate and campaign. In theory, Super PACs are run independently of the campaign by people not involved with the campaign. They are not supposed to coordinate with the candidate on creating ads, media buys, etc. But of course, there are loopholes big enough to drive an armored car full of cash through. The candidate can appear at fundraisers for the Super PAC as long as s/he leaves the room before they start the pitch for money.  The campaign can put out a press release about its upcoming media buys so that the Super PAC can adjust their spending appropriately. The campaign can even upload photos, videos, etc. to their campaign website that would be ideal to use in an ad, and the Super PAC can download those materials for use.

The biggest loophole that Republicans have exploited in the run-up to 2016 is that a candidate can set up his/her own Super PAC as long as s/he has not yet declared as a candidate. This allows the candidate to be directly involved in the creation, staffing, and strategy of the Super PAC until s/he formally declares as a candidate, after which an iron curtain is supposed to fall.

When Sanders said he and his team considered creating a Super PAC, is he being entirely straightforward? Is his stated rationale the full story, or is there more he's choosing not to say?

Here's why I ask. In the above scenario that allows a candidate like Jeb Bush to create his own Super PAC and start raking in cash while still officially "exploring his options," such conduct is permissible because at the time, he was an ex-governor and a private citizen.

But, and this is key, the rules are different for currently elected Federal officeholders like Senator Sanders.

In an excellent article by Paul Blumenthal I strongly recommend you read at Huffington Post, "How Super PACs and Campaigns Are Coordinating in 2016" the author clarifies this detail.

Presidential candidates who hold federal office, including Sens. Marco Rubio (R-Fla.), Ted Cruz (R-Texas) and Rand Paul (R-Ky.), can’t take advantage of the gaping coordination loophole Bush and other candidates have used. The coordination laws apply to them at all times they occupy federal office.

If you think about this, the rationale becomes clear. Anyone currently in office is continuously fundraising for future campaigns, and is subject to Federal rules. Therefore, a member of Congress can't create a Super PAC and use the dodge that s/he is "exploring" their next moves.

So the questions for Sanders are:

  1. When did you consider setting up a Super PAC?
  2. You claim your decision was driven by your desire to remain free of Wall Street and corporate influence. Did your advisors also tell you that as a current Federal officeholder, you were not permitted to set up one of your own?
  3. If you couldn't create one in the first place, why do you tell people you considered it but decided against it, suggesting you could have done so but are making a sacrifice due to your high ethical standards?

Inquiring minds would love to see Sanders, Jeff Weaver, and/or Tad Devine try to deflect these questions.

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