In the US, is the ban on coordination between Super PACs and candidates effective?

Question

In the US, Super PACs may not make contributions to candidate campaigns or parties, but may engage in unlimited political spending independently of the campaigns (quote from Wikipedia). However, the Super PAC Restore our Future was created to support Mitt Romney, and Priorities USA Action was created to support Barack Obama. Is the ban on coordination between Super PACs and candidates effective in preventing conflicts of interest should the candidate win political power?

Answer 1

Not really.

In theory, they are not communicating.

In practice,

• Campaign consultants talk to the press, and pretty much express the campaigns POV in public. So it's not like some backdoor communications are required. In general, campaigns do a lot more interaction with the media than before. It's not aimed at Super-PAC (presumably), but has this side effect.

• Also, most Super-PACs are staffed by people generally close to (aka cronies) of candidates. That was true for both sides in 2012. As such, just like with a long-married couple, speaking isn't always necessary. You discussed all the topics over the years, and know what each other thinks.

Mind you, the people involved are always 100% sure to clearly not be violating the letter of any anti-coordination laws.

Answer 2

On the surface, it seems like the ban is one in name only and may well function as a stepping stone for the Court to eventually allow direct, unlimited personal and corporate donations to campaigns. Priorities USA was founded by Bill Burton and Sean Sweeney both former Obama campaign officials and Restore Our Future has three former Romney staffers on their board. Clearly if there was a need to covertly communicate with the campaign, these are the type of people who would have the access and resources to do just that. Whats more, these are the types of people who came up with much of the campaign messaging last time around, and really wouldn't need much guidance from the campaign to keep on message. Furthermore, public comments made by either side in reference to important issues are perfectly legal, and offer an avenue for indirect coordination to take place as humorously pointed out by Stephen Colbert on his show the Colbert Report where he avoided illegal coordination by communicating with his PAC through his TV show.

However, in practice, there are some examples that seem to indicate, at least in this first Super PAC driven election cycle, that the ban on coordination has had some effect. The perceived separation between the campaigns and the Super PACs led each Super PAC to air much more vicious ads than the campaigns ever would. In fact, both Romney and Obama faced criticism from these ads and were forced to plead with the media to believe that these ads would never have been run by the campaign and were a function of an uncoordinated Super PAC. Obama even encouraged his Super PAC, through the media, to pull an ad before it ever aired. Similarly, when the Obama campaign was moving its message off of Bain (due to their ineffectiveness), Priorities USA kept up those ads for several more weeks and muddled the Obama message even further.

It is unclear, and without evidence of illegal coordination will remain unclear, if these public departures from the campaign strategy taken by the Super PACs was part of a broader campaign strategy that just didn't work out as intended, or genuine examples of Super PACs making decisions that would have been disapproved of by the campaign. In the case of the Romney campaign there was wide outrage within the Republican leadership of the way the campaign was handling their media efforts and the decisions of the Super PAC were a way to mitigate some of that concern amongst the establishment. Either way, the lack of public coordination had at least two real affects this election cycle:

• Super PACs could and did run far more vicious ads than the campaigns themselves because the candidate could plausibly deny their association with them.
• Super PACs often veered off in directions not publicly supported by the campaign, often times in ways that ultimately hurt the campaign they intended to support.