[There was a video here]
In a characteristically rambling speech on Tuesday, Donald Trump accused Marco Rubio and Ted Cruz of coordinating with the super PACs supporting their candidacies: “They talk to their super PACs. They’re not supposed to, but that’s the way life works.”
The implication here is that the two senators have breached the Federal Election Commission’s rules governing coordination between campaigns and super PACs. But it’s not so clear exactly what would constitute such a breach. From the Sunlight Foundation, in 2012:
Although a candidate cannot coordinate expenditures with a super PAC (tell the PAC where an ad might be placed, whether the ad should be positive or negative, or what voters canvassers should contact), there’s no law that says a candidate can’t have connections with a the entities backing his or her election. Many super PACs [...] are run by former top aides of the candidates. And candidates can headline fundraisers for the super PACs that are supporting them [...] so long as they don’t ask for donations beyond the legal limits permitted for their own campaign committees. Donors are free to write larger checks and super PAC staffers are free to ask for them, but as long as the candidate abides by federal campaign limits or doesn’t actually ask for funds. It’s all kosher. Bottom line: There’s a legal prohibition against candidates’ coordinating with super PACs but the FEC has been exceedingly lenient in defining what constitutions coordination, as University of California law professor Rick Hasen pithily outlines in his Election Law Blog.
In this election cycle, as The Huffington Post reported in December, candidates have found ever more ingenious ways to push the boundaries of what constitutes compliance, often in order to share information and multimedia with the PACs:
Two groups back Rubio’s candidacy: Conservative Solutions PAC, a super PAC, and Conservative Solutions Project, a nonprofit group that does not disclose its donors. Conservative Solutions PAC advertisements contain footage of Rubio on the campaign trail shaking hands with workers and giving a stump speech that could only have been filmed by his campaign.
How does a super PAC get access to this footage? Candidates believe they can share information with super PACs or other outside groups if that information is relayed in a public setting.
In September, for example, Rubio’s campaign uploaded more than five minutes of b-roll footage — snippets of film of the candidate with filler music playing — to its Vimeo account. The practice of uploading b-roll footage for super PACs to “find” was widespread in the 2014 elections among congressional campaigns.
Buzzfeed noticed that Cruz’s Senate campaign uploaded hours of footage to YouTube showing the Texas senator talking alongside his wife, father, mother and other family members. All of this is now available for outside groups to use if they need feel-good footage of Cruz with his family.
“I assume they’re waiting so their media buyers make the highest commission,” a Cruz advisor told Politico.
The strategically placed complaint apparently came about because one pro-Cruz super PAC worried about coordinating with the campaign. According to CNN, Keep the Promise I super PAC was planning a series of biographical advertising spots in South Carolina using the b-roll from Cruz’ Senate account — until lawyers stepped in to say that using the footage could run afoul of the coordination statutes.
All of which is to say that Trump isn’t making it up when he says, “They talk to their super PACs.” It’s not like Marco Rubio is picking up the phone and asking people to place attack ads...but the message gets through just the same.