2014-03-12 New York Progress and Protection PAC - Declaration of Clyde Wilcox (57)

8/12/2019 2014-03-12 New York Progress and Protection PAC - Declaration of Clyde Wilcox (57)

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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK

NEW YORK PROGRESS ANDPROTECTION PAC,

Plaintiff ,

- against -

JAMES A. WALSH, in his official capacity asCo-Chair of the New York State Board oElections, et al.,

Defendants ,

- and -

ERIC T. SCHNEIDERMAN, Attorney Generalof the State of New York,

Intervenor-Defendant .

No. 13 Civ. 6769 (PAC)

EXPERT DECLARATIONOF CLYDE WILCOX

CLYDE WILCOX declares as follows under penalty of perjury:

I. Overview and Summary of Findings

1. In this declaration I provide an expert opinion for the Attorney General of the State of

New York for the case New York Progress and Protection PAC v. Walsh. I have

been asked to answer two questions:

a. If an exception to New Yorks aggregate limit on contributions to political

committees were created for contributions to committees that make only

independent expenditures, would a significant number of Super PACs form

at the state level that closely resemble political party or candidate committees,

i.e. , committees that declare that they are independent but are staffed by

political party insiders and operatives, including close allies of candidates;

Case 1:13-cv-06769-PAC Document 57 Filed 03/17/14 Page 1 of 51


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that often support only one candidate; and that receive very large donations in

excess of existing limits on contributions to candidates?

b. Do unlimited contributions to such Super PACs pose a substantial risk of

corruption or the appearance of corruption?

2. In preparing this report I have reviewed the relevant professional literature in political

science, as well as reports from non-profits and state regulatory agencies. I have

considered a range of opinions and findings. I have consulted with political scientistswho are the leading experts on campaign finance, and reviewed other relevant

materials. I also draw on my own experience in studying campaign finance,

including many interviews over nearly 30 years with campaign professionals,

candidates, and others.

3. I am a professor of government at Georgetown University where I have taught for 26

years. I have studied interest groups and campaign finance for nearly 30 years. I

have coauthored two books on individual donors to presidential and congressional

elections, a leading textbook on interest groups in elections, now in its 3 rd edition, and

a leading textbook on interest groups that covers elections, now in its 6 th edition. I

have co-edited more than a dozen books that deal in some way with interest groups in

elections, and have written many book chapters and journal articles on interest groups

and campaign finance. I have been invited to lecture on interest groups in elections

and campaign finance in a number of countries, and have taught courses on the topic



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recently in Japan and Spain. I have served as an expert witness on campaign finance

and interest group cases for the Federal Election Commission and the Justice

Department, and have served as a background consultant in other federal cases. I was

an expert witness for the Federal Election Commission in the SpeechNow.org v. FEC

case in 2008. In December 2013, I submitted an expert declaration in Hispanic

Leadership Fund, Inc. v. New York State Board of Elections , No. 12-cv-1337

(N.D.N.Y.). I am being paid $250 per hour to prepare this declaration, which further

develops and refines the declaration that I offered in the Hispanic Leadership Fund

matter. Attached hereto as Exhibit 1 is a true and correct copy of my currentcurriculum vitae.

4. I offer the following conclusions:

a. If an exception to New Yorks aggregate limit on contributions to political

committees were created for contributions to committees that make only

independent expenditures, it is almost certain that a large number of Super

PACs would form that would be closely linked to individual candidates or to

political parties. These Super PACs would serve the same functions as

candidate and party committees, thereby allowing very large contributions to

benefit candidates and parties that exceed New Yorks contribution limits.

b. Allowing unlimited contributions to Super PACs would pose a substantial risk

of corruption and increase the appearance of corruption.



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II. If an exception to New Yorks aggregate limit on contributions to politicalcommittees were created for contributions to committees that make onlyindependent expenditures, it is almost certain that many Super PACs wouldorganize in the state, and that a majority of these would be closely associated with

specific candidates or political parties. These committees would operate asauxiliaries of candidate and party campaigns. Large unregulated contributions tothese committees would be de facto contributions to candidates and parties.

5. In my opinion, creating an exception to New Yorks aggregate limit on contributions

to political committees for contributions to committees that make only independent

expenditures would result in the creation of a large number of candidate and party-

oriented Super PACs. I base my opinion on past experience with very large

contributions to political parties (soft money) and very large contributions to 527

committees that engaged in issue advocacy, where parties and campaigns created

procedures to link those contributions directly to candidates, and pressed donors for

larger and larger contributions. I base my opinion also on the explosive growth of

Super PACs in national elections, and in state and even local elections.

6. Past experience with party soft money shows that when individuals and groups were

allowed to make unlimited sized contributions to political parties, there was an

explosion in these large donations. Soft money is money that does not count as a

contribution under the Federal Election Campaign Actfor example, money

donated for party building, get-out-the-vote efforts, or issue advocacy. Parties found

ways to link these contributions of soft money to the support of particular candidates.

Donors of soft money were given preferential access to policymakers, including

presidents and members of Congress. Concerns over the corrupting potential of party

soft money led to its ban in the BCRA, which was upheld by the U.S. Supreme Court

in McConnell v. FEC , 540 U.S. 93 (2003).



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a. Between the mid-1980s and 2002, when soft money contributions were

banned through BCRA, individuals, corporations and labor unions gave

increasingly large sums to the soft money accounts of political parties.

Wealthy donors were repeatedly asked to give, and asked for increasingly

large contributions in settings which guaranteed donors access to make policy

arguments. In theory soft money contributions were for party building or to

help state and local candidates, but in practice candidates solicited soft money

contributions which were then earmarked to their campaigns. Presidential

candidates were the most important soft money fundraisers, and donorsunderstood that these contributions would be of great benefit to the

candidates. Presidential candidates directly solicited these soft money

contributions on behalf of the party. In 1996 for example, Bill Clinton held

many soft money fundraising events in the White House and benefitted

enormously from targeted party spending before the campaign began in states

that his campaign would target. 1 Donors also earmarked contributions to aid

specific congressional candidates, and made the candidates aware of their

generosity. 2 These contributions gave donors special access to policymakers,

and created the appearance and reality of undue influence over policymakers

as well.

b. Most of this money came from very large contributions from corporations,

interest groups, and individuals. In 2002, more than 365 individuals gave at

1 Clyde Wilcox, Follow the Money: Clinton, Campaign Finance, and Reform, inUnderstanding the Presidency , eds. James P. Pfiffner and Roger Davidson (2nd edition 2000).2 Brooks Jackson, Honest Graft (Knopf, 1988).



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least $120,000 apiece in soft money. 3 In many cases they did so because they

were explicitly promised greater access to policymakers if they gave. In 1996,

for example, the Democratic National Committee offered a membership

category of Executive Committee to soft money donors of $100,000 or

more, and promised opportunities to meet with party officials and exchange

views with policymakers. The Republican National Committee made a

similar promise to those who gave $100,000 and called them Team 100. 4

c. Soft money was raised in circumstances that gave donors special access to

policymakers. Presidents Reagan and later Clinton raised soft money in

intimate White House coffees, and congressional Republicans held soft money

fundraisers before they wrote the final language for legislation of interest to

various industries. 5 This special access is itself a distortion of the democratic

process, but it also creates the opportunity for corrupt deal making. Without

special access, soft money donors could not have received the policy

outcomes that were detailed in the McConnell case.

d. Although congressional soft money contributions were often spent to benefit

particular candidates in close races, even those candidates whose campaigns

did not receive a soft money boost were grateful for the impact of these funds

3 Thomas E. Mann, The Rise of Soft Money, in Inside the Campaign Finance Battle , ed. A.Corrado, T. E. Mann and T. Potter (2003).4 Mark J. Rozell & Clyde Wilcox, Interest Groups in American Campaigns: The New Face of

Electioneering (1999).5 Ruth Marcus, GOPs Issues Conferences Coincided with Hill Action, The Washington Post July 24, 1997 A1.



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on their partys overall fortunes. Policymakers have greater influence when

their party is in the majority, and thus appreciate contributions that help those

few party candidates who are involved in close elections to win. Party leaders

reminded all members of the caucus which individuals and groups had made

large soft money contributions, in some cases directly before legislation was

marked up or voted on.

e. Although it took a few election cycles for parties to realize the full potential of

soft money fundraising, they became increasingly dependent on this easy

money. Between 1992 and 2002, total Democratic soft money increased from

$46 million to more than $246 million, while total Republican soft money

increased from $64 million to $250 million. 6 The rapid growth of soft money

was the result of active and persistent solicitation by policymakers and their

agents, and by party officials. In his declaration for the McConnell case,

Gerald Greenwald, chairman emeritus of United Airlines, reported that

corporations and unions gave soft money because experience has taught that

the consequences of failing to contribute (or to contribute enough) may be

very negative. Corporate executives complained in the late 1990s about the

repeated and escalating requests for contributions, and some companies

announced that they would no longer contribute. 7

6 Magleby, David, and Nicole Carlisle Squires, 2004. Party Money in the 2002 CongressionalElections. In David Magleby and Quin Monson (eds.) The Last Hurrah: Soft Money and Issue

Advocacy in the 2002 Congressional Elections. Washington, DC: Brookings.7 John M. Broder, Time Warner to End Gifts of Soft Money. The New York Times.

November 18, 1999.



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f. As Alan Simpson (R-WY), former Senate Majority Whip noted in his

declaration for the McConnell case, Often, donors would give large sums of

soft money to attend events with elected officials Party leaders would

inform Members at caucus meetings who the big donors were. At these

events, it was not uncommon for the donors to mention certain legislation that

affected them. Simpsons testimony was echoed by many former and current

members of Congress. 8

g. The McConnell record is full of examples where large soft money

contributions influenced legislative outcomes. Recognizing the potentially

corrupting power of large soft money contributions, Congress moved to ban

them in BCRA. This ban was upheld by the U.S. Supreme Court in the

McConnell case. The court cited several specific instances where large

contributions appear to have exerted undue influence on the legislative

process.

7. Past experience with 527 committees also informs my opinion that Super PACs

would quickly organize in New York if an exception to New Yorks aggregate limit

on contributions to political committees were created. Technically, a 527

committee is any organization operated primarily for the purpose of making

expenditures for the purpose of influencing elections, 26 U.S.C. 527(e), but in

common usage (and in this declaration) the term refers to an organization that does

not make expenditures for express advocacy (advocacy that calls for election or

8 McConnell v. FEC , Declaration of Alan Simpson, Civil Action No. 02-0582, U.S. DistrictCourt for the District of Columbia.



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defeat of a particular candidate). For example, in the 2004 presidential campaign, the

ads broadcast by 527 committees called Swift Boat Veterans and P.O.W.s for Truth

never asked voters to support George W. Bush, but instead attacked John Kerry and

ended in tag lines like If we couldnt trust John Kerry then, how can we possibly

trust him now? 9 The history of 527 committees is similar to that of party soft money,

but partisan and campaign activists more quickly recognized the potential for these

committees and created 527 groups that were essentially adjuncts of the party and

presidential campaigns. Over time the magnitude of giving to 527 committees

escalated rapidly. Party activists and candidate campaign officials solicitedcontributions to 527 committees with the explicit promise that the candidates and the

party would be grateful. 527 committees served as surrogates for political parties,

allowing a new form of soft money contributions, and by 2004 they served as

extensions of presidential campaigns.

a. Networks of partisan activists and consultants created a significant number of

527 organizations in the 2000s. Democratic Party chairman Terry McAuliffe

gathered a group of DNC leaders to seek a way to continue to deploy large

contributions after the BCRA soft money ban went into effect. 10 McAuliffe

sought a new form of soft money that would not be controlled directly by the

parties, but instead by partisan activists and presidential campaign activists.

These DNC leaders later met with the heads of Democratic-leaning interest

groups including the AFL-CIO, SEIU, EMILYs List, and the Sierra Club to

9 Ads can be viewed at https://www.youtube.com/watch?v=ngjUkPbGwAg10 McConnell v. FEC , Declaration of Alan Simpson, Civil Action No. 02-0582, U.S. DistrictCourt for the District of Columbia



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plan the creation of a series of 527 organizations that would solicit large

contributions to fund broadcast advertising, voter registration and

mobilization, and a variety of other efforts. Out of these discussions came a

variety of new organizations, including Partnership for Americas Families,

America Votes, Americans Coming Together (ACT), and the Media Fund.

The goal of these organizations was to help elect a Democratic presidential

candidate in 2004. Some groups were designed to focus on broadcast

advertisements, others for voter mobilization. 11 These efforts included Harold

Ickes, former Clinton Chief of Staff, and then paid consultant to the DNC.Ickes later ran the Media Fund, and helped to coordinate fundraising for the

large Democratic 527s through the Joint Victory Campaign. Ickes is now

actively helping form Super PACs to help Hillary Clinton, as described below.

b. Republican-leaning organizations such as Progress for America (PFA) were

also formed by party activists and consultants, some of whom were also

involved in the formation and funding of Swift Boat Veterans and P.O.W.s for

Truth. Republican efforts were similarly facilitated by activists with ties to

campaigns and the party. PFA was founded by Tony Feather, Political

Director of the Bush-Cheney campaign, who then worked as a consultant in a

firm that worked for the RNC. To avoid the appearance of coordination,

Feather resigned as head of the organization and chose Chris LaCivita as the

new head. LaCivita was former Political Director of the National Republican

11 Stephen R. Weissman & Ruth Hassan, BCRA and 527 Groups, in The Election After Reform: Money, Politics, and the Bipartisan Campaign Reform Act , ed. M. J. Malbin (2006).



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Senatorial Committee. LaCivita later left PFA and consulted on two GOP

Senate campaigns, and eventually became a senior strategist for Swift Boat

Veterans and POWs for Truth (Weissman and Hassan 2006). Thus even when

these 527 committees sought to avoid any legal coordination, other party

activists took over who moved in the same circles and talked to the same

consultants.

c. Party officials sent clear signals to donors identifying 527 committees that

were part of the political party network and campaign effort and assuring

donors that their contributions to these organizations were encouraged and

would be appreciated. Large donors who sought to win favor with

policymakers in either political party did not have to work hard to find 527

organizations willing to take their money that were in some way part of this

loose party network. Weissman and Hassan note that leaders of Democratic-

leaning 527 organizations needed to persuade both ideological and access

donors that these efforts were serious and recognized by the party. 12 They

note that To engage potential donors, (Ellen) Malcolm and Ickes explained

their well thought out campaign plans and their long-term goal of investing

not just in an election but also in building a campaign infrastructure for the

party. They also assured many donors of their relationship to the party and

the campaigns. Their message was We dont talk to the campaigns, are not

12 The authors note that the distinction between ideology and access is not so stark, quotingmegadonor George Soros as saying that I hope I will get a better hearing under Kerry. StephenR. Weissman & Ruth Hassan, BCRA and 527 Groups, in The Election After Reform: Money,

Politics, and the Bipartisan Campaign Reform Act , at 87.



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connected to them, but they know and appreciate us and contributions are part

of the public record and they are aware. 13

d. To further signal donors of the close connection between the party and these

527 groups, political party operatives recruited former President Bill Clinton,

whose close ties to DNC chair Terry McAuliffe were well known.

(McAuliffe went on to be chief fundraiser for Hillary Clintons campaign in

2008). He reassured donors. One 527 leader said that He koshered us. He

gave the donors confidence, both ideological ones and access ones. 14 In

other words, Clinton assured donors that these 527 committees were

legitimate, run by professionals who would make smart decisions that would

help the candidates, and that party leaders would very much appreciate these

contributions. Clinton solicited contributions during the campaign for the

DNC, for John Kerrys campaign, and for the Media Fund. The leaders of

these 527s were visible at the Democratic National Convention, with an office

down the hall from the DNC Finance division.

e. On the Republican side, groups benefitted from visible signals from party

leaders. RNC Chair Ed Gillespie and Bush-Cheney Campaign chair Marc

Racicot listed Progress for America as a group that could legally engage (in

combat with) Democratic groups. Progress for America leaders believed that

this signal from party leaders helped them raise money. 15 Thus the leaders of

13 Id. at 86.14 Id. at 87.15 Id. at 87-88.



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both parties explicitly directed big donors to give to these groups, because

they believed they would help the candidates.

f. Although technically many of these 527 groups claimed not to have sought to

elect or defeat particular candidates, this is a polite fiction. During a press

event at the Center for the Study of Elections and Democracy at Brigham

Young University, Harold Ickes noted that I wasnt in this to either elect or

defeat anybody. I want to make that very clear for those of you out there

with subpoenas. The transcript then notes that this claim was greeted with

laughter. 16

g. Contributions to these party-affiliated 527 committees were widely interpreted

by political scientists as a new form of soft money. One recent account of 527

committees concluded that 527s are not independent actors disrupting the

party system, but rather well placed participants in party networks that helped

the parties. 17 Instead of giving money directly to the parties, large donors

in 2004 gave large contributions to separate committees run by party activists,

assured by party leaders that this would help the candidates and party, and be

appreciated. If soft money contributions cause corruption, then large

contributions to organizations run by party leaders have the same potential for

corruption.

16 Transcript of panel, Center for the Study of Elections and Democracy at Brigham YoungUniversity for the Release of Dancing Without Partners, Feb. 7, 2005.17 Richard Skinner, Seth Masket, & David Dulio, 527 Committees, Formal Parties, and PartyAdaptation, The Forum 11(2): 137, 137 (2013).



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8. Taken together, the experience with soft money and with 527 committees suggests

the following.

a. When vehicles are allowed to receive unlimited contributions that can help

parties and candidates, they become conduits for very large contributions from

wealthy donors. Party leaders and campaign officials create special

committees that are run by party activists and high level professionals, and

develop methods to signal to potential donors that they approve of these

committees. This pattern developed slowly with unlimited soft money

donations to political parties, more rapidly with unlimited donations to 527

committees, and even more rapidly at the national level with unlimited

donations to Super PACs, as we see below.

b. Not all 527 committees were or are run by party activists and informally

coordinated with the campaigns. But savvy donors will be directed by

insiders to the groups that are professionally run and that seek to maximize

their benefits to the candidate and party. Thus although some 527 committees

are loose cannons and may not directly help the candidate, many others serve

as unofficial extensions of parties and campaigns.

c. A network of party and campaign activists exists in both parties who move

easily among jobs in campaigns, parties, interest groups, and newly created

committees so that even in the absence of formally proscribed coordination

(e.g. , as defined by the Federal Election Commission at 11 C.F.R. 109.21),



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large contributions from donors to nominally independent committees often

greatly benefits candidates and parties and are appreciated by them.

9. The history of Super PACs at the Federal level further confirms and makes clear that

Super PACs will form quickly and be major players in New York if an exception to

New Yorks aggregate limit on contributions to political committees were created for

contributions to committees that make only independent expenditures.

a. The growth of Super PACs has been extraordinary, both more rapid and more

substantial than that of 527 committees. Only 83 Super PACs registered with

the FEC in the 2010 election cycle, with moderate levels of spending. But by

2012 the number of Super PACs had exploded to over 1300. 18 It took several

elections for the soft money system to solidify, a few elections for the 527

system to solidify, and only three years for the Super PAC system to become a

major component of political party and candidate strategy.

b. The largest and most active Super PACs in the 2012 national elections were

either closely affiliated with a single candidate, or allied with a political party.

A report by Public Citizen concluded that more than half of all Super PACs

were either single candidate committees or party allied committees, and that

these committees accounted for some 74% of Super PAC spending in 2012. 19

18 Michael Franz, Interest Groups in Electoral Politics: 2012 in Context, The Forum 10(4): 62,63 (2012).19 Public Citizen, Super Connected: Outside Groups Devotion to Individual Candidates andPolitical Parties Disproves the Supreme Courts Key Assumption in Citizens United thatUnregulated Outside Spenders would be Independent (March 2013).



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This percentage is almost certain to increase as candidates quickly move to

take advantage of the Super PAC system.

c. Campaign officials directed potential donors to give to Super PACs. For

example, CBS News reported on Feb 7, 2012 that President Barack Obamas

campaign is asking top fundraisers to support a Democratic-leaning outside

group that is backing the presidents re-election bid, reversing Obamas

opposition to super political action committees, which can spend unlimited

amounts of cash to influence elections. Obamas campaign urged wealthy

fundraisers in a Monday night conference call to support Priorities USA, a

super PAC led by two former Obama aides that has struggled to compete with

the tens of millions of dollars collected by Republican-backed outside

groups. 20 Similar directives were given by Romney, Gingrich, and Santorum

campaign officials. Thus the connection between Super PACs and candidates

was obvious to potential donors. News media routinely referred to these

PACs as candidate PACs. 21

d. Candidate Super PACs were directed by those with close connections to the

candidate and the campaign. Newt Gingrichs Super PAC was founded and

run by former aides. Rick Perrys Super PAC was run by his former Chief of

20 Obama Reverses on SuperPACs, Seeks Support. http://www.cbsnews.com/news/obama-reverses-on-super-pacs-seeks-support/ (accessed 12/3/2013).21 See, e.g. , Jeremy Peters, Romney SuperPAC makes $12 million ad buy, New York Times ,October 18, 2012; James V. Grimaldi, Billionaire Adelson gives millions to Gingrich SuperPAC, Washington Post, January 7, 2012 .



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Staff. Farrar-Myers and Skinner detail the connections between the Romney

and Obama campaigns and their respective Super PACs:

Both the leading presidential candidate Super PACs, Restore Our Future

(ROF) supporting Romney and Priorities USA Action supportingObama (Priorities), had close ties to their respective favored candidates.ROF was founded by Charles Spies, general counsel to Mitt Romneys2008 presidential campaign. Its board includes two veterans of Romneys2008 presidential campaign: Carl Forti, who had served as politicaldirector, and Larry McCarthy, who had been a top media advisor. [Fortialso serves as the political director for American Crossroads.] StevenRoche, a top Romney fundraiser, left the presidential campaign in Augustto join ROF. Similarly, Priorities was founded in April of 2011 by BillBurton and Sean Sweeney, two veterans of the Obama White House whorespectively served as Deputy Press Secretary and Chief of Staff to former

White House Chief of Staff Rahm Emanuel. Its top fundraiser served asObamas Florida finance chair during the 2008 campaign. 22

e. In some cases, candidates Super PACs were primarily funded by a single

donor. Gingrichs committee, Winning Our Future, received $11 million from

Sheldon Adelson and his wife. Gingrich met privately with Adelson at

Adelsons Las Vegas casino, and days later Adelson contributed another $5

million to the PAC. Adelson gave more money to Gingrichs PAC than

Gingrichs campaign committee raised from all donors throughout the

campaign. Rick Santorums Red, White and Blue Super PAC was funded

primarily by Foster Friess, who traveled with Santorum on his campaign bus

for three weeks. 23

f. In many ways the candidate Super PACs were not just an extension of the

campaign, they were the principal campaign vehicle for candidates.

22 Victoria A. Farrar-Myers & Richard Skinner, Super PACs and the 2012 Elections, The Forum 10(4): 105, 113 (2013).23 Jeff Smith & David C. Kimball, Barking Louder: Interest Groups in the 2012 Election. The

Forum 10(4):80, 81 (2013).



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Candidate Super PACs often aired more campaign ads for a candidate than the

campaign itself. For example, Mitt Romneys campaign aired some 30,141

broadcast ads during the 2012 primaries, but Restore Our Future, Inc., a Super

PAC run by former Romney campaign staffers, aired some 49,661. More

strikingly, Newt Gingrichs campaign aired only 6,381 ads during the

primaries, but Winning Our Future, a Super PAC run by Gingrichs former

aides, aired 11,588. During the GOP primaries, Super PACs aired 82,084 ads,

compared to just 63,749 by the candidates. 24

g. The explosion of candidate oriented Super PACs is almost certain to continue,

and to spread to congressional and to state and local elections. Even

candidates in sparsely populated states are forming Super PACs in advance of

the 2014 elections. For example, already two Super PACs have formed in the

Alaska U.S. Senate race for 2014 that are clearly linked to particular

candidates. In late November, 2013, Alaskas Energy / Americas Values

registered with the FEC. The PACs web site proclaims Supporting the

candidacy of Daniel Sullivan (R) for U.S. Senate, Alaska. 25

h. At the end of January, 2014, a Super PAC called Mississippi Conservatives

was formed to help Senator Thad Cochran fend off a primary challenge

and to counter Super PAC spending for Cochrans challenger. The Super

PAC is advised by Henry Barbour, a member of the Republican National

24 Michael Franz, Interest Groups in Electoral Politics: 2012 in Context, The Forum 10(4): 62,66 (2012) (table 1).25 http://www.energyandvalues.com/ (accessed 12/3/2013)



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Committee, and will benefit from fundraising by former Mississippi Governor

Haley Barbour. 26

i. In Louisiana, persons with direct ties to U.S. Senator David Vitter organized a

Super PAC to support him in 2015 and 2016. The Super PAC paid people to

raise money for the Super PAC that were also paid fundraisers for Vitters

campaign. Specifically, both Vitter and the Super PAC paid long-time Vitter

fundraiser Courtney Guastella and the LS Group to raise money. The LS

Group is owned by the wife of the Super PACs organizer, Charles Spies,

whose law firm represents Vitter. 27 Vitter appeared at Super PAC fundraisers

and the Super PAC offered contributors a chance to hunt alligators with

Vitter for $5,000 per person. 28

j. Also in Louisiana, Republican Rep. Bill Cassidys former chief of staff,

strategist Josh Robinson, has told several media outlets that he plans to form a

super PAC backing his former boss. 29

26 Jonathan Martin, Super PAC is Formed in Mississippi to Protect 6-Term Senator in G.O.P.Primary. New York Times January 30, 2014.http://www.nytimes.com/2014/01/31/us/politics/mississippi-super-pac-aims-to-protect-6-term-senator-in-primary.html?_r=0; accessed March 1, 2014.

27 Marsha Schuler, Super PAC Fights for Ability to Raise Unlimited Contributions, The Advocate , Feb. 12, 2014, http://theadvocate.com/home/8321174-125/banking-on-it28 Michelle Millhollon, Vitter Super PAC raises $1.5 million, The Advocate , Feb. 20, 2014,http://theadvocate.com/news/8045923-123/vitter-super-pac-raises-1529 Scott Bland, 10 Super PACs You've Never Heard of That Will Make News in 2014,

National Journal, http://www.nationaljournal.com/hotline-on-call/10-super-pacs-you-ve-never-heard-of-that-will-make-news-in-2014-20140117



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k. In North Carolina, supporters of Thom Tillis set up a Super PAC to support

him in a U.S. Senate race in 2014. The executive director of the Super PAC,

Michael Luethy, is a former staffer for the North Carolina Republican Party

and the Republican State Leadership Committee who now heads . . . Oak

Grove Campaigns, which provides services to candidates in more than two

dozen states. 30

l. In California, former U.S. Representative Richard Pombo set up a Super PAC

to support two representatives of agricultural districts. Pombo explained that

ag interests are all gearing up to get involved and stated that his Super PAC

would spend its money on California politicians instead of sending it to other

politicians out of state. 31

m. In addition to candidate-oriented Super PACs, many Super PACs have formed

which are closely allied with political parties. These Super PACs have been

widely described as central to party networks. Farrar-Myers and Skinner refer

to them as shadow party Super PACs. 32 Smith and Kimball report that these

PACs are formed by party leaders and allied groups. 33 Michael Franz notes

that four Super PACs operated to help the four congressional parties (Senate

30 Matthew Burns, Tillis backers form super PAC for possible Senate bid, WRAL.com,

http://www.wral.com/tillis-backers-form-super-pac-for-possible-senate-bid/12481395/31 John Ellis, New Super-PAC to help Central Valley GOP congressmen, Fresno Bee , June 19,2013, http://news.fresnobeehive.com/archives/288432 Victoria A. Farrar-Myers & Richard Skinner, Super PACs and the 2012 Elections, The

Forum 10(4): 105, 113 (2013).33 Jeff Smith & David C. Kimball, Barking Louder: Interest Groups in the 2012 Election. The

Forum 10(4):80, 82-83 (2013).



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Democrats, Senate Republicans, House Democrats, and House Republicans).

He notes that all four were run by former staff of the congressional

leadership or by former members of Congress. He argues that an FEC ruling

that allowed candidates to appear at fundraising events for Super PACs

incentivized congressional leaders to set up parallel Super PACs that

advocated for Congressional candidates. He notes that the party-affiliated

Super PACs like Majority PAC and House Majority PAC in particular are

clearly operating with the same goals as the party committees. 34 Political

scientist Raymond La Raja observes that these are legally separate from partycommittees but managed by former staff and working closely with allied

interest groups. 35

n. The party-affiliated Super PACs and affiliates were major players in the 2012

campaigns. For example, the two American Crossroads organizations,

organized by Republican strategist Karl Rove and former GOP chair Ed

Gillespie, spent more than $170 million in the 2012 election cycle. Majority

PAC, organized to help Senate Democrats, aired more than 20,000 ads in 13

Senate races; its House counterpart the House Majority PAC ran slightly less

than 20,000 ads in 44 House races. 36

34 Michael Franz, Interest Groups in Electoral Politics: 2012 in Context, The Forum 10(4): 62,70-71 (2012).35 Raymond J. La Raja, Why Super PACs: How the American Party System Outgrew theCampaign Finance System, The Forum 10(4): 91, 101 (2013).36 Michael Franz, Interest Groups in Electoral Politics: 2012 in Context, The Forum 10(4): 62,69-70 (2012) (tables 3 & 4).



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o. Party leaders appeared at fundraising events for these partisan PACs, and

partisan activists solicited contributions in a way that assured donors that their

contributions would be appreciated. There is a network of party leaders in

New York who would stand ready to do this at the state level.

10. The experience of other states suggests that many candidate and partisan Super PACs

will form if an exception to New Yorks aggregate limit on contributions to political

committees were created.

a. California imposed contribution limits on candidates in 2000, but continued to

allow unlimited contributions to independent expenditure committees.

Spending by these committees rapidly increased, and many of these

committees were linked to candidates or parties. For example, two

individuals provided more than 80% of the nearly $10,000,000 spent by

Californians for Better Government on behalf of California State Treasurer

Phil Angelides in his campaign in the Democratic primary for governor in

2006. In 2008, Valley Democrats for Change spent $385,000 to help

Assembly candidate Bob Blumenfield in the Democratic primary. The Super

PAC was funded primarily by two people with close personal ties to

Blumenfield.

b. More recently, California has experienced a surge in Super PACs that have

played a major role in state elections. In June, 2013 NBC News reported that

a number of Super PACs had formed to aid specific candidates and to act as

party proxies. The report notes that Super PACs were active not only in U.S.



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House races but in state elections as well, and that the GOPs Super PAC

Congressional Leadership Fund, bolstered by a $5 million contribution from

Adelson, had created a California affiliate, the California Leadership Fund.

The report notes that Super PACs will be crucial to the strategy of both major

parties 37

c. In Vermont, which has recently permitted unlimited contributions to Super

PACs, a Super PAC associated with GOP candidate Wendy Wilton spent

more money than all other actors combined, including both political parties

and both the GOP and Democratic campaign committees.

d. In Hawaii, creating an exception to contribution limits for independent

committees had an immediate effect. After a federal court barred enforcement

of Hawaiis limit on contributions to independent committees in 2012, a union

formed and financed a Super PAC that outspent the candidate for mayor of

Honolulu that it opposed by a margin of nearly three to one ($3.6 million to

$1.43 million). The Super PAC, Pacific Resources Partnership, may be single-

handedly responsible for electing Kirk Caldwell, who had trailed in the polls

to frontrunner and former Governor of Hawaii Ben Cayetano. 38

37 Sherry Bebitch Jeffe, Super PACs: California Here We Come. NBC Bay Area June 1, 2012.http://www.nbcbayarea.com/blogs/prop-zero/Super-PACs-California-Here-They-Come-156392675.html (accessed 12/4/2013).38 Jim Dooley, Caldwell, PAC Spent $5 Million In Mayoral Campaign, Hawaii Reporter , Dec.6, 2012, http://www.hawaiireporter.com/cadlwell-pac-spent-5-million-in-mayoral-campaign/123



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e. In many states there are multiple transfers across Super PACs that make

transparency difficult. 39 In one case in the state of Washington, a single

individual organized dozens of Super PACs that transferred money among

themselves. Ultimately most of these PACs were funded by unions, but the

shuffling of funds made it difficult to trace. 40

f. Super PACs have already appeared at the state level in many other states,

usually as partisan groups that are acting as party organizations in all but the

most formal sense of the term. 41

g. In states with many competing interests and expensive elections, there will be

professional consultants and party professionals who stand ready to use new

vehicles to channel large contributions into elections. New York has a

political culture that would facilitate the quick growth of Super PACs. The

Preliminary Report of the Commission to Investigate Public Corruption

concluded that the state has a campaign finance system dominated by access-

seeking donors, that parties use Housekeeping Accounts that are

functionally identical to national soft money accounts banned by BCRA, and

39 Nicholas Confessore, A National Strategy Funds State Political Monopolies, The New YorkTimes , Jan. 11, 2014.40 Keith E. Hamm, Michael J. Malbin, Jaclyn Kettler, & Brendan Gavin, The Impact of CitizensUnited in the States: Independent Spending in State Elections, 2006-2010 (2012updatedversion of paper presented at the 2012 APSA Meeting, New Orleans).41 Id. Abstract.



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that there are already undisclosed independent expenditure campaigns by

501(c)(4) groups from out of state. 42

h. Dr. Michael Malbin of SUNY Albany concludes that There is no reason in

the world why it [candidate and party oriented Super PACs] should not

migrate to New York. 43 Malbin is a leading expert on state campaign finance

and also on state Super PACs.

i. The experience of the plaintiff in this very case suggests that Super PACs will

rapidly form in New York. The New York Progress and Protection PAC was

formed to support GOP candidate Joseph J. Lhota. Although the PAC was

unable to receive unlimited contributions until October 24, 2013, the date on

which the district court entered a preliminary injunction, and Lhota trailed by

a huge margin at that time in the polls, the PAC raised $230,000 before the

election, including a $200,000 contribution from David Koch that would

exceed the New York contribution limit. The Super PAC managed to air

commercials in this short amount of time.

11. Taken together, there is ample evidence that Super PACs would quickly grow and

flourish in New York if an exception to its contribution limits were created for

independent expenditure committees. Experience at the federal level with soft

money, 527 committees and then Super PACs suggests that a network of partisan

activists stands ready to quickly mobilize and transfer money to new committees.

42 Commission to Investigate Public Corruption, Kathleen Rice, Milton Williams Jr., andWilliam Fitzpatrick (chairs) Preliminary Report, Dec. 2, 2013.43 Personal communication, 11/29/2013.



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The experience in other states and in New York City also provides evidence of the

almost certain course of New York campaign finance if the limit were lifted.

III. Allowing unlimited contributions to Super PACs would pose a substantial risk ofcorruption and increase the appearance of corruption.

12. Candidate and party allied Super PACs are best thought of as extensions of the

campaigns. Candidates and political parties are grateful for direct contributions

because they help them win elections. But contributions to other groups that help the

candidate or party win are also appreciated, and candidates have openly asked for

these contributions and expressed gratitude for them. I base my opinion on evidence

from 527 committees which aided candidates through issue advocacy, and on Super

PACs in the past two elections, which have been formed by campaign activists

explicitly to help elect the candidate, and where candidates have explicitly expressed

gratitude for this assistance.

13. Direct contributions are potentially corrupting because candidates and parties benefit

from the spending, and because these contributions create an opportunity for an

exchange, or quid pro quo, of money for undue legislative influence. But candidates

and parties benefitted from the issue advocacy of 527 committees, and benefitted

from the express advocacy of Super PACs as well. This is because 527 issue

advocacy and spending by candidate and party Super PACs is carefully controlled to

benefit the candidates, and there is a network of communications that allows for de

facto coordination in the absence of legal coordination.



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in 1996 that labor can plausibly claim responsibility for defeating a majority

of first term [Republican] losers. Thus, money spent outside the regular

campaigns on voter education can have a major effect on election results. 45

Political scientists credit the Swift Boat Veterans ads in 2004 for helping to

undo John Kerrys momentum and increase voter distrust of Kerry. 46

Magleby, Monson, and Patterson reported results from survey data of voters

that showed that the Swift Boat ads were widely seen and on net hurt the

Kerry campaign. They also report that Democrats and Republicans

[consultants] alike concur that the Swift Boat ad hurt Kerry badly.47

TheSwift Boat ads were more effective than a similarly-sized gift to the Bush-

Cheney campaign, because they would have invoked more suspicion if they

were paid for by the campaign.

c. Campaign consultants have stated that they believe that even issue advocacy

ads influence election outcomes. In the depositions for McConnell , for

example, Republican consultant Rocky Pennington concluded that Interest

group broadcast ads had a very significant effect on the outcome of the 2000

Congressional race, especially the ads run by the Club for Growth. He

45 Gary Jacobson, The Effects of the AFL-CIOs Voter Education Campaigns on the 1996House Elections, Journal of Politics 61 (1): 185-94 (1999).

46 Christopher P. Borick, The Swift Boat Ads and the John Kerry Campaign: A Question of

Advertising Effectiveness, Public Opinion Pros (2005)http://www.publicopinionpros.norc.org/features/2005/aug/borick.asp (accessed 12/13/2013).

47 David B. Magleby, J. Quin Monson, & Kelly D. Patterson, The Morning After: TheLingering Effects of a Night Spent Dancing, in Dancing Without Partners: How Candidates,

Parties, and Interest Groups Interact in the Presidential Campaign , at 25, eds. D. B. Magleby, J.Q. Monson & K. D. Patterson (2007).



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reports that one of these ads, run just before the primary, led directly to the

failure of a Republican primary candidate to win the primary. He argues that

radio ads by interest groups also mattered, concluding that one ad against Mr.

Sublette [his candidate in the race] cost us a couple of points. 48 Joe

Lamson, a consultant who managed Democratic candidate Bill Yellowtails

Congressional campaign in Montana, reported that ads run by a group called

Citizens for Reform were important in the election. He notes that polling data

before these ads aired showed Yellowtail ahead by eight points, and that

polling just after the ads ended showed that he trailed by five points. Heconcludes that I believe the Citizens for Reform ads were a big factor in this

change, and in Mr. Hills victory in the election. 49 Terry Beckett, a

Democratic consultant, concluded that based on [his] observations, these ads

affected the outcome of the Republican primary ad run-off and the general

elections. She argues that ads by groups such as the Club for Growth were

primarily responsible for the outcome in a 2000 congressional race. 50

d. Because candidates PACs may claim to have legal independence from the

campaign, they can concentrate on attack ads while allowing the candidate

some plausible deniability. Terry Dolan, director of the National

Conservative Political Action committee (NCPAC) the first PAC to make

48 McConnell v. FEC , Declaration of Rocky Pennington, Civil Action No. 02-0582, US DistrictCourt for the District of Columbia.49 McConnell v. FEC , Declaration of Joe Lamson, Civil Action No. 02-0582, US District Courtfor the District of Columbia.50 McConnell v. FEC , Declaration of Terry Beckett, Civil Action No. 02-0582, US District Courtfor the District of Columbia.



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substantial independent expenditures in the 1980 Senate campaigns, summed

up this advantage succinctly when he said that A group like ours could lie

through its teeth, and the candidate it helps stays clean. The vast majority of

candidate Super PAC ads were attack ads, which generally adopted a tone that

might backfire on candidates. One recent study has suggested that attack ads

sponsored by unknown independent groups are more effective, on net, than

ads sponsored by the candidate. The authors argue that voters discount

attack ads sponsored by a candidate as biased, but are more accepting of such

ads sponsored by groups with innocuous names.51

e. Super PACs are now forming to perform specific functions for campaigns,

mirroring the specialization of Democratic 527 committees in 2004. For

example, the new Super PAC Ready for Hillary, formed in advance of her

candidacy announcement, is for now concentrating on building a small donor

fundraising list for the candidate. Journalists report that the widespread

belief is that several Ready for Hillary staff members would take up positions

in the campaign. 52 Harold Ickes, who helped build the Democratic party 527

network in 2004, stated that If she decides to run, then within the confines of

the law, these names and addresses will be given to the campaign. 53

51 Deborah Jordan Brooks & Michael Murov, Assessing Accountability in a Post-CitizensUnited Era: The Effect of Attack Ad Sponsorship, American Politics Research 40: 338-418.P338 (2012).52 Amy Chozick, Super PAC Gets Early Start on Pushing for a 2016 Clinton Campaign, The

New York Times , Nov. 3, 2013.53 Nicholas Confessore, A Bet on Clinton: If They Network, She Will Run, The New YorkTimes , July 29, 2013.



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15. Candidates have openly stated that Super PACs influenced or will influence the

outcome of their elections.

a. There are many examples, but consider the following fundraising video for the

House Democrats Super PAC: 54

SCRIPT FOR AMERICAN MAJORITY PAC VIDEO

You know in 2010 we fought a very hard race and we kept closing the gap. We got itdown to single digits at the end of the race, and two weeks out Karl Rove andAmerican crossroads came and they poured $700,000 into a single week of televisionagainst us. That had a dramatic impact in driving our momentum backwards, and thatwas probably the major reason why we lost in 2010. We were grateful to see House

Majority PAC formed so we could actually have allies on our side that were helpingus get our message out. And that, really, in many ways, was probably the differencein the outcome and one of the big reasons why we won this time. (CongressmanAmi Bera)

Karl Rove and the outside interest groups were filling the airways trying to drown usout. And there was House Majority PAC offering critical pushback exactly at the timethat we needed it. (Congresswoman Cheri Bustos)

The thing about the House Majority PAC is they know what it takes. Theyresmarter, more efficient. Their ads on stem cell research made a big difference in mycampaign. (Congressman Patrick Murphy)

We were in a dog fight there at the end and over $2 million of outside money inunder two weeks at the end. It was a ton of bricks and if we hadnt have had help to

pushback to make sure our positive message for change was getting out, I dont thinkwe wouldve been able to do it. I wouldnt be here today if it werent for thetremendous help of the House Majority PAC. (Congresswoman Elizabeth Esty)

Not everyone gets the importance of the Latino vote. But just like the communitymembers invested in my American dream, the House Majority PAC believes in thatAmerican dream. They believe they can make the investments thats going to make adifference in the future with new ways of persuading and motivating the Latino vote.(Congressman Raul Ruiz)

The worst came 10 days before the election. Big oil gave a huge chunk of moneyand dumped that money against me. We risked losing it all. Well, just two days later,I got the news that House Majority PAC went back up on the air, for the second time,

54 http://www.thehousemajoritypac.com/our-work/united-states/house-majority-pac-we-make-the-difference (accessed 12/13/2013).



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talking about my opponents very, very, extreme positions on womens issues andwomens rights. (Congresswoman Kyrsten Sinema).

Look, I wanted to play my part in turning the page on the tea party. The only problem was that the interests I was running against were some of the best funded, best organized interests in the country. House Majority PAC really knows how to getthe biggest bang for the buck. They found the undecided voters in my district andcommunicated effectively on cable, on TV, and in the mail. I simply couldn't havedone it without them. (Congressman Sean Patrick Maloney)

RESULTSDemocrats pick up eight seats; House majority PAC won nearly 2/3 of the races inwhich they invested (The Hill); House majority PAC coordinated with other

progressive groups to pool resources and research in a targeted way (NBC); animpressive showing (The Hill); The first caucus in the history of civilized governmentto have a majority of women and minorities (Yahoo News); downright artful (RollCall); Devastatingly Effective (Politico). (voiceover).

If it werent for House majority PAC I wouldnt be here today. (Kyrsten Sinema) When we got word that Darth Vader himself, Karl Rove and the Crossroads wascoming in, you had to recruit the team to fight back and destroy that Death Star, andwe fought back and we won. (Congressman Raul Ruiz)

Smart. Creative. Effective. WE MAKE THE DIFFERENCE.

b. Candidates are seeking Super PAC contributions by telling donors that these

groups will make a difference. Terry Lynn Land, running for a GOP Senate

nomination in Michigan, says on video that So, my husband and I, like I said,

are committed to this. Were out on the road, were raising money, its going

to take a lot of resources to do this. Its probably a $20 million campaign. But

the reality is, weve got new folks out there who are raising money. Thats the

super PACs. She went on to say that Now, our campaign has talked to a lot

of those folks. Theyre committed to Michigan. 55 This example also shows

55 Video clip available at http://www.huffingtonpost.com/2013/09/25/terri-lynn-land-super- pac_n_3982274.html (accessed 12/4/2013).



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how candidates are able to steer donors to Super PACs that effectively help

their campaigns.

c. Additional evidence that politicians think that Super PAC spending

influences elections is the efforts that some make to deter donors from giving

to Super PACs helping their opponents. GOP party leaders, especially Senate

Majority Leader Mitch McConnell, have explicitly discouraged donors to

FreedomWorks, a Tea Party aligned Super PAC. Clearly these incumbent

Senators believe that spending by FreedomWorks influences GOP primary

outcomes. The president of FreedomWorks has stated that Ive been told by

a number of donors to our Super PAC that theyve received calls from senior

Republican Senators. I cant give to you because Ive been told I wont have

access to Republican Leadership (if I do). McConnell directed the

Republican Senatorial Committee to cut ties with advertising firms that

worked for Senate Conservative Fund a Super PAC that supports

challengers to GOP Senate incumbents. Party leaders would only go to this

effort if they thought that Super PAC spending mattered in election

outcomes. 56

16. Candidates are grateful for Super PAC help, and to the large donors who finance

them. They were grateful for even the less direct assistance of 527 committees.

56 Jeremy W. Peters, Chastened G.O.P. Tries to Foil Insurgents at Primary Level. The NewYork Times Feb 9., 2014. //nyti.ns/1fWWdf3; accessed 3/1/2014.



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primary may have been made more with the intent to curry favor than to

ensure victory.

c. The longer experience of 527 committees in issue advocacy campaigns

combined with the extensive discovery process in McConnell has provided

ample evidence that candidates were very grateful for issue advocacy

campaigns on their behalf. It stands to reason that they will be even more

grateful for direct advocacy by Super PACs.

d. Speaking of issue advocacy campaigns, political science professor David

Magleby argues that candidates know who gives to independent expenditure

groups, and those who benefit from those expenditures are grateful. In the

current team sport approach to campaigns, there is an implicit division of

labor so that independent groups can do the most hardhitting, negative attacks,

allowing the candidate to stand apart, and above them. This only furthers the

candidates appreciation for the independent expenditures. 59

e. In the lengthy discovery process for McConnell, a number of former

policymakers and candidates attested to the gratitude of candidates to those

who funded key issue advocacy campaigns. For example, former Senator Alan

Simpson, in his declaration for the McConnell case, noted that These ads are

very effective in influencing the outcome of elections, and the people who

admit to running these ads will later remind Members of how the ads helped

get them elected. Members realize how effective these ads are, and they may

59 Personal interview, August 7, 2008.



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well express their gratitude to the individuals and groups who run them.

Senator Dale Bumpers testified that Candidates whose campaigns benefit

from these ads greatly appreciate the help of these groups. In fact, Members

will also be more favorably disposed to those who finance these groups when

they later seek access to discuss pending legislation. Elaine Bloom,

congressional candidate in 2000 in Floridas 22 nd district, said in her

declaration for McConnell that her campaign taped ads run by groups that

supported and opposed her, and made sure I knew what was going on. She

noted that The AFL-CIO and the Florida Democratic Party ran many issueads in support of my campaign and these surely influenced the outcome to

my benefit. She further argues that ads run by Citizens for Better Medicare

and the Republican Party were deciding factors in the race. She notes that

she appreciated the ads described above that were run by political parties and

interest groups although she did not know in advance that they would be

run. 60 The National Federation of Independent Business (NFIB) reportedly

spent $100,000 to help Randy Forbes win a special election for Congress in

Virginia in 2001, primarily through radio ads. Forbes reportedly called NIFB

President Jack Farris to thank him, saying If it hadnt been for your people, I

wouldnt have won. 61 Linda Chapin, congressional candidate in Floridas 8 th

district in 2000, reported in her declaration for the McConnell case that

EMILYs List ran ads for her based on gun safety issues (not the central

60 McConnell v. FEC , Declaration of Elaine Bloom, Civil Action No. 02-0582, US District Courtfor the District of Columbia.61 Juliet Eiperin, Small Business Group Sticks to One Side of Political Fence, The Washington

Post , May 16, 2002, A23.



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concern of the organization) primarily to help her campaign. She stated that

Federal candidates appreciate interest group electioneering ads like those

described above that benefit their campaigns, just as they appreciate large

donations that help their campaigns . I appreciated the ads run by EMILYs

List on my behalf. In general, candidates in the midst of a hard-fought

election like mine appreciate any help that comes their way. (emphasis

added).

f. In McConnell, several consultants attested to the gratitude of candidates to

donors to issue advocacy campaigns. Democratic consultant Joe Lamson

concluded in his declaration that if you are in a close race and there are

interest groups out there helping you with things like broadcast issue ads,

you usually appreciate the support. Republican consultant Rocky Pennington

claimed in his declaration that usually the ads are helpful and candidates

appreciate them. He went on to add that In addition to trying to elect

candidates, these groups are often trying to create appreciation or even

obligation on the part of successful candidates. And candidates usually do

appreciate this kind of help, even when they deny it publicly, which they

usually do.

17. Contributions to candidate Super PACs and party Super PACs are functionally very

similar to contributions to candidates and parties.

a. The central role of Super PACs to campaigns is evidenced by the role of the

activists who headed up the efforts. Obamas Super PAC, Priorities USA



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Action, was founded by Bill Burton, the 2008 press secretary for the Obama

campaign, and deputy press secretary in the White House, and Sean Sweeney,

who was chief of staff to Rahm Emanuel in the White House. In September,

2012, Rahm Emanuel stepped down as campaign co-chair to raise money for

Priorities USA. In discussing the move of such a high ranking campaign

official to the Super PAC, Obama campaign spokeswoman Jen Psaki said that

Were not going to bring a butter knife to a gun fight. Mitt Romneys Super

PAC Restore Our Future was cofounded by Carl Forti, who served as political

director of Romneys 2008 campaign, and its treasurer Charles Spies waschief financial officer and counsel to Romneys 2008 campaign. Instead of

using these experienced hands in the campaign, the candidates sent them to

help raise money and direct spending of the Super PACs. This suggests that

candidates believed that these experienced and trusted aides could help them

more at the Super PAC than in the campaign.

b. Rules against coordination do not prevent candidate Super PACs from

engaging in campaign strategies that greatly aid the candidate. It is difficult to

police the boundary of coordination; only a whistle blower revealed the likely

coordination between U.S. Representative Michele Bachmanns presidential

campaign and her Super PAC. 62 But even without explicitly coordinating,

many adapt strategies to supplement those of the candidate or party. Super

PAC directors are part of a dense network of partisan activists through which

62 Trip Gabriel, New Inquiry for Bachman on her Presidential Race, The New York Times ,Sept. 5, 2013.



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information flows rapidly, even without explicit coordination. There are

many signaling devices to help independent groups help candidates without

explicitly coordinating. For example, in 2010, the National Republican

Congressional Committee (RNCC) publicly released its advertising plans,

thereby allowing independent groups to plan strategies to coordinate. 63 In

2011-12, John Lapp ran the Democratic Congressional Campaign

Committees independent expenditure effort while his wife Ali ran House

Majority PAC, a Super PAC that also ran independent expenditures. In one

striking occasion, the DCCC and House Majority PAC ran similar ads citingthe same line from the Wall Street Journal , but the Lapps claim to have not

coordinated, saying that they spend their time talking about the potty training

of their two year old, not campaign ads. 64 When top campaign professionals

operate in a network of shared information, they do not have to reach explicit

agreements on strategy or tactics to be as effective or nearly as effective as the

candidates campaign committee. There are many shared nodes in these

networks. For example, Romneys campaign committee and his Super PAC

used the same direct mail firm to reach voters, TargetPoint. There were a

63 Kenneth P. Vogel & Alex Isenstadt, When Coordinate is a Dirty Word, Politico (2011) .http://www.politico.com/news/stories/0511/55911_Page2.html (accessed 12/5/2013).64 Jeff Smith & David C. Kimball, Barking Louder: Interest Groups in the 2012 Election, The

Forum 10(4):80, 81 (2013).



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handful of other connected firms that worked with both committees in the

same suite of offices. 65

c. There are instances where Super PACs and parties announce their strategies

and respond to one another. In their study of Super PACs in 2012, Farrar-

Myers and Skinner conclude that Evidence suggests independent

expenditures can and have been functionally coordinated with a campaign,

even if all individuals and organizations are complying with applicable law.

They go on to point to the 2010 Congressional election in Texass 17 th

District, where Independent organizations ran ads that mirrored Floress own

campaign ads, and when outside groups announced that they were running ads

in the last week before the election, the National Republican Campaign

Committee diverted $75,000 that it had earmarked for spending in the

Edwards-Flores race to other races. 66

d. Candidates have tempered their language to fit legal restrictions but have

implicitly asked for contributions to candidate and party Super PACs. At a

campaign fundraiser in September, 2012, for example, Obama warned that

conservatives have super PACs that are writing $10 million checks and have

the capacity to just bury us under the kind of advertising weve never seen

before. He then noted that if somebody here has a $10 million check, I

65 Mike McIntire and Michael Luo, Fine Line between Super PACs and Campaigns, The NewYork Times , February 25, 2012. http://www.nytimes.com/2012/02/26/us/politics/loose-border-of-super-pac-and-romney-campaign.html?pagewanted=all&_r=0 (accessed 12/6/2013).66 Farrar-Myers & Skinner, op. cit., p 111.



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cant solicit it from you but feel free to use it wisely. 67 Romney attended

many fundraisers for his Super PAC, but always left just before the close

asking for contributions. In at least one instance, Romney characterized a

contribution to Restore Our Future as being to me. 68 House and Senate party

leaders attend fundraisers for their respective Super PACs, and circulate

among donors having informal contributions. And as noted above, Gingrich

interrupted his campaigning to fly to Adelsons casino for a private meeting,

and within a few days Adelson had contributed an additional $5 million.

e. Candidate Super PACs are not similar to single individuals or small

companies making independent expenditures; they are closer to the model of

presidential candidate PACs that presidential candidates used in the 1980s,

which were used by candidates to finance their pre-candidacy campaigning.

Anthony Corrado detailed the ways in which these PACs undermined

campaign finance regulations, including making the system less transparent

and allowing wealthy donors to avoid contribution limits. 69 Corrado noted

that these PACs were an essential part of candidate strategy, and that

contributions to these theoretically independent PACs should be thought of as

contributions to the candidate. This is even more true for candidate Super

67 President Obama, Remarks at the Waldorf Astoria , White House Transcript (Sept. 18, 2012),http://1.usa.gov/PSVvn0.68 Romney $1 Million Mystery Corporate Donation (You Tube video, uploaded Aug. 25, 2011),http://bit.ly/UmQvWC . 69 Anthony Corrado, Creative Campaigning: PACs and the Presidential Selection Process (1988).



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PACs, which as we have seen often air many more ads than the candidates

themselves.

f. Federal Judge Richard Posner has written that it is difficult to see what

practical difference there is between super PAC donations and direct

campaign donations, from a corruption standpoint A super PAC is a

valuable weapon for a campaign ; the donors to it are known; and it is

unclear why they should expect less quid pro quo from their favored candidate

if hes successful than a direct donor to the candidates campaign would be. 70

g. David Magleby, a leading expert on interest groups in campaigns, states that

Candidate and party leader connected Super PACS are seen by the

candidates and party leaders as extensions of their disclosed and limited

fundraising. Evidence for this is the fact that candidates and party leaders can

speak to Super PAC donors about the purpose and importance of the Super

PAC, they have access to information on who contributed to Super PACs and

the leaders of candidate and party leader centered Super PACs often

previously worked closely with the candidate or party leader. 71

18. Super PAC contributions are raised in a way that increases the likelihood of

corruption and greatly increases the appearance of corruption. Donors have intimate

access to candidates and party leaders, and their very large contributions are essential

to candidate strategies, giving them leverage over candidates. Because mega-donors

70 Richard Posner, Unlimited Campaign SpendingA Good Thing? THE BECKER -POSNER BLOG(April 8, 2012), http://bit.ly/S1c8xU.71 Personal communication, 12/7/2013.



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often meet with candidates both in public and in private, the same opportunities for

quid pro quo exchange that exist in the context of direct contributions to candidates

also exist in the context of donations to Super PACs that support a candidate. The

magnitude of the contributions, and the centrality of a small number of mega donors

further increases the risk of corruption.

a. Super PAC donors are courted by candidates and their proxies with phone

calls and personal meetings. Mega-donors often have many one-on-one

meetings with the candidates, who ask for more money. As noted above,

Newt Gingrich took time from his campaign to fly to Las Vegas to Adelsons

casino, and was rewarded by an additional large contribution. Friess traveled

on the Santorum bus for three weeks. Candidates and policymakers appear at

their PACs fundraising events and socialize and mingle with the crowd. Jim

Messina, Obamas 2012 campaign manager, told supporters in an email that

Senior campaign officials as well as some White House and Cabinet officials

will attend and speak at Priorities USA fundraising events. 72

b. Potential Super PAC donors may threaten to withhold contributions unless a

candidate changes his or her position on an issue. Although this is more likely

to occur among donors who seek material benefits, ideological donors may do

this as well. In May, 2012 leading GLBT and progressive donors refused to

give more money to Obamas Super PAC in protest over his refusal to sign an

executive order barring same-sex discrimination among federal contractors. A

72 Jim Messina, We Will Not Play by Two Sets of Rules , BarackObama.com (blog) (Feb. 6,2012), http://bit.ly/yOWH1f.



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political advisor to megadonor Jonathan Lewis noted that A number of gay

and progressive donors, unsolicited, have indicated to us that they arent

considering requests to donate to the Obama Super PAC because of the

presidents refusal to the sign the order. And those are high-dollar asks, some

in the seven digits. We have heard from at least half a dozen major gay and

progressive donors that they stand united with us. There is still time for the

President to do the right thing and sign this executive order, our great hope is

that he does so immediately. 73 Although Obama did not reverse his position

on this issue, two days after the article was published he announced hissupport for same-sex marriage.

c. Candidates were in the past offered issue advocacy support if they would

change their positions on issues. This almost certainly will happen with Super

PAC contributions as well, since they are more valuable. In declarations in

the McConnell case, candidates and policymakers reported being offered

substantial independent expenditure campaigns if they adopted their position

on key issues. For example, Linda Chapin noted in her declaration that while

discussing electioneering by interest groups At least one other group offered

to provide campaign support if I would agree to vote a certain way on their

issues. I let them know what my position was, but they wanted me to change

it somewhat and I did not agree to that. Chapins point is echoed by other

73 Greg Sargent, Top Obama Donors Withholding Money Over Executive Order Punt, TheWashington Post , May 7, 2012. http://www.washingtonpost.com/blogs/plum-line/post/top-obama-donors-witholding-money-over-executive-order-

punt/2012/05/07/gIQAPKsl8T_blog.html (accessed 12/6/2013).



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candidates, who say that groups sometimes promise large independent

expenditure campaigns in exchange for particular policies. For example, in

1998 U.S. Rep. Vince Snowbarger charged that a consulting firm representing

Native American gaming concerns promised that the congressman would

benefit from substantial independent expenditures, including a very

aggressive mail and phone campaign over the last five or six days of the

campaign targeted solely at Wyandotte County if he would agree to help the

Wyandot Tribe of Oklahoma open a casino. 74 In this case, a group offered an

attempted quid pro quo for an independent expenditure campaign.

d. There have been proven instances where independent expenditures are linked

to corruption.

i. In West Virginias state Supreme Court race in 2004, Massey Energy

president Donald Blankenship created an independent expenditure

group called And for the Sake of the Kids, and contributed $3.5

million to the group, which sought to help defeat incumbent justice

Darrell McGraw and to elect Justice Brent Benjamin. Justice

Benjamin has since refused to recuse himself from key cases involving

Massey Energy. He voted with a majority in April, 2008 to void a $70

million judgment against Massey, despite petitions from Harman

Mining that claimed that Benjamin had benefitted from what

74 Tim Carpenter, Kansas Lawmaker Alleges Bribery Try on Gaming Issue, Journal-World (Lawrence, Kansas). October 8, 2008.



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amounted to an unprecedented campaign contribution. This is an

example of an independent expenditure campaign at the state level

funded by very large contributions, which is widely seen as having

resulted in significant policy payoffs for the donor.

ii. In Wisconsin, Democratic state Senate Majority Leader Charles

Chvala negotiated a plea bargain on charges that he set up independent

expenditure groups under his control for state elections, and repeatedly

told lobbyists that he would hold up votes on their measures unless

they contributed to these groups and to Democratic Senate candidates.

These groups then spent the money to help elect Democratic Senate

candidates. In this case, a politician requested contributions to

independent expenditure campaigns and explicitly threatened to

influence policy if the contributions were not made. The criminal

charges made it clear that Chvala had the ability to block legislation in

the state senate, and listed several instances where legislation was

blocked until contributions were made, and where explicit discussions

were had about the amounts that must be contributed before action

would be taken. The State of Wisconsins sentencing memorandum to

the judge in the case noted a pattern of using bogus independent

expenditure groups, and that the use of these groups denied the

publics right to know who was paying for campaigns. The

memorandum goes on to note that Chvala had pressured corporate

donors to contribute to these independent expenditure campaigns



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under threat that their interests would suffer in legislation pending

before the legislature .

iii. In Nebraska, Regent Drew Miller admitted to sending an e-mail

requesting that his supporters set up an independent group called

Defenders of Medical Research, and asking that the e-mail not be

forwarded. The organization was subsequently set up and funded, and

spent money on behalf of Miller. The Nebraska Accountability and

Disclosure Commission unanimously voted that Miller had violated

the law, and ordered civil penalties.

iv. In 1998, Republican Majority Leader Mitch McConnell promised

Republican senators that the Tobacco industry would mount a

television campaign to support those who voted to kill comprehensive

tobacco legislation. After assessing the role of tobacco contributions

on voting by Senators on past legislation, the Wall Street Journal

reported that The lesson for the tobacco industry might be that hard

hitting ads are more effective than campaign contributions. In his

declaration for the McConnell case, Republican senator John McCain

confirmed the accuracy of this report, noting that essentially the

promise was used to influence votes (McCain 2003).

e. The magnitude of the contributions, combined with the reliance on a few very

large donors, exacerbates the danger of corruption. Many Super PACs are

funded primarily by a single donor, who gives very large sums. Newt



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Gingrich was almost totally dependent on Sheldon Adelson and his wife, and

Rick Santorum relied almost entirely on Foster Friess. Adelson went on to

give $20 million to Romneys Super PAC.

f. The danger of corruption is also exacerbated by the fact that many Super PAC

donors are functional

2014-03-12 New York Progress and Protection PAC - Declaration of Clyde Wilcox (57)

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Transcript of 2014-03-12 New York Progress and Protection PAC - Declaration of Clyde Wilcox (57)