Suppose a candidate for Congress attends a fundraising event held by a Super PAC set up specifically to support (and which in practice only supports) that candidate. During the event, the candidate offers some brief welcoming remarks to the guests — most of whom have already contributed the maximum allowable amount of $52001 directly to the candidate for that election. The candidate asks that each individual attendee make a $5000 contribution — the maximum amount that an individual would be legally permitted to contribute to a PAC governed by traditional campaign finance limits2 — to the Super PAC, which the candidate says he hopes “will be used for a good cause.” Two minutes later, the candidate leaves to attend another event; one of the organizers of the fundraising event, acting on behalf of the Super PAC, then asks that each attendee give $100,000 instead of $5000, to be put to the benefit of the candidate who just left the room.
Some have mocked this state of affairs for creating large loopholes that functionally allow coordination between candidates and Super PACs that is prohibited by law.3 However, under the current federal regime, this type of ostensibly “noncoordinated” collaborative fundraising is entirely legal — even commonplace.4 This Note discusses the challenges posed by the growth of Super PACs and their increasing collaboration with candidates in fundraising efforts, and proposes a regulatory framework that maximizes the freedom for Super PACs to communicate their messages to voters and minimizes the potential for actual or apparent corruption that can occur when candidates coordinate with Super PACs.
Coordination between candidates for elective office and independent expenditure–only political action committees — commonly dubbed “Super PACs” — is an issue of growing importance to campaign finance law. The tension over what activities are considered “coordination” hits at the heart of Super PAC activity: to maintain their legal designation, Super PACs must operate independently of the candidates they support.5 Federal law treats any Super PAC expenditure that is coordinated with a candidate as a “contribution” to that candidate rather than as a legally allowed “expenditure.”6 Because of this limitation, a Super PAC cannot make a coordinated expenditure — if it does, the Super PAC may no longer raise unlimited contributions to make independent expenditures and must abide by the same restrictions as a traditional PAC that can legally make contributions directly to candidates.7
The concern about coordination is especially prominent in the area of political fundraising. Though some fundraising collaboration between candidates and outside groups has historically existed,8 the import of this form of coordination has been amplified with the genesis of Super PACs, which can raise and spend unlimited funds to elect candidates, but only through independent (noncoordinated) expenditures.9 The Federal Election Commission (FEC), upon request, advised that federal candidates could participate in the fundraising efforts of these new Super PACs.10 Federal candidates jumped at this opportunity — news accounts of candidate attendance at Super PAC fundraisers have proliferated,11 yet there has been no concurrent updating of the statutory and regulatory limitations on these fundraising activities.
This Note argues that, as the number of Super PACs continues to grow,12 the FEC and state election agencies should redefine “coordination” between candidates and Super PACs to include candidate-assisted Super PAC fundraising activities in order to ensure that Super PACs maintain the appropriate level of independence. An ideal definition would limit candidates’ abilities to attend Super PAC fundraisers, solicit contributions on behalf of Super PACs, share fundraising consultants with Super PACs, and provide lists of wealthy family members and friends to Super PACs. Each of these activities pushes at the legally mandated boundaries of independence between candidates and Super PACs, and poses the threat of quid pro quo corruption that the Supreme Court has recognized as a sufficiently important interest to allow the regulation of campaign finance.13
This Note proceeds in three Parts. Part I describes the rise of Super PACs in the wake of Citizens United v. FEC14 and discusses the collaborative fundraising efforts currently employed by candidates and Super PACs. Part II describes the current state and federal regimes governing candidate assistance with Super PAC fundraising. Part III proposes a new framework that redefines “coordination” to include collaborative fundraising efforts and justifies this regulation as necessary to prevent quid pro quo corruption or the appearance of such corruption, the primary rationale that has allowed the government to regulate campaign finance since Buckley v. Valeo.15
I. The Rise of Super PACs
Section I.A discusses the growth of Super PACs after Citizens United. In striking down prohibitions on corporate independent expenditures,16 the Court also substantially limited the type of corruption considered sufficient to justify restricting campaign finance activity.17 The section then describes the development of Super PACs following the D.C. Circuit’s decision in SpeechNow.org v. FEC.18 Section I.B discusses the growth of candidate-assisted Super PAC fundraising and highlights recent criticisms surrounding this collaboration.
Since Buckley, the first major challenge to the Federal Election Campaign Act of 197119 (FECA), campaign finance law has been bifurcated into separate sets of regulations governing contributions and expenditures.20 The Supreme Court in Buckley upheld greater overnmental restrictions on contributions than expenditures, the latter of which the Court viewed as sitting at the core of protected First Amendment speech.21 The idea of corruption was central to the Court’s reasoning — contributions were perceived as tending to corrupt recipients more than expenditures corrupted their intended beneficiaries, so contributions could be regulated more stringently.22 Because independent expenditures lacked the same potential to corrupt, limitations on those expenditures were unconstitutional.23 Two corruption concerns drove the Buckley decision: quid pro quo corruption and “the appearance of corruption.”24
Buckley’s distinction between direct contributions (which could potentially corrupt) and independent expenditures (which could not) became the basis of the Court’s analysis in Citizens United.25 As an adjunct to holding that corporations may make unlimited independent expenditures,26 the Citizens United Court made a key determination that allowed for the creation of Super PACs: the Court found that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”27 The Court reaffirmed that “[t]he absence of prearrangement and coordination of an expenditure with the candidate . . . not only undermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.”28 By finding that independent expenditures categorically lack the power to corrupt, Citizens United laid the groundwork for a new type of organization able to raise and spend unlimited funds, but only on independent expenditures — the modern Super PAC.
The D.C. Circuit relied on Citizens United in the follow-up case of SpeechNow.org,29 and in doing so created the Super PAC.30 The D.C. Circuit distinguished these new “independent expenditure–only groups,” which could accept unlimited contributions and make unlimited expenditures, from traditional PACs that could contribute directly to candidates.31 Relying on the Citizens United Court’s determination that “preventing corruption or the appearance of corruption” was the only justification sufficient to allow the regulation of campaign finance,32 the D.C. Circuit found that independent expenditures made by groups designed to make only such expenditures could not pose a threat of quid pro quo corruption: because these expenditures could not be coordinated with candidates, “there [was] no corrupting ‘quid’ for which a candidate might in exchange offer a corrupt ‘quo.’”33 The court thus held that “the government has no anti-corruption interest in limiting contributions to an independent expenditure group.”34 Though the Supreme Court has not officially recognized independent expenditure–only PACs as a distinct type of political entity able to accept unlimited contributions, this understanding has been broadly accepted and adopted, including as applied to state election laws.35
The basic assumption that Super PACs cannot coordinate their expenditures with candidates is the assumption that allows Super PACs to exist in the first place.36 These independent expenditure–only PACs may, as the name implies, make only “independent expenditures,” defined as an expenditure that “expressly advocat[es] the election or defeat of a clearly identified candidate” and “is not made in concert or cooperation with or at the request or suggestion of such candidate.”37 If a Super PAC makes an expenditure “in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate,” that expenditure “shall be considered to be a contribution to such candidate” for the purposes of applicable federal limits on contributions.38 Because certain actors, such as corporations and labor organizations, cannot contribute money directly to federal candidates,39 a Super PAC’s contribution to a candidate would be illegal if the Super PAC had raised any of its funds from those prohibited sources.40
This basic notion of Super PACs as independent of candidates is becoming increasingly attenuated with the growth and development of Super PACs, especially a new form of Super PAC focused on electing a single candidate.41 Beginning with the 2012 election, major candidates were put at a serious competitive disadvantage if they were not supported by at least one Super PAC.42 Super PACs are often able to outspend the candidates they support, without contribution limits as an imposition.43 The major role Super PACs have come to play in U.S. elections over a short span of time has only served to diminish candidates’ incentives to remain completely independent from these new groups and to fuel the fire behind collaborative fundraising efforts.
Collaborative fundraising is not a new phenomenon: prior to the genesis of Super PACs, some collaborative fundraising was allowed as long as candidates did not solicit amounts that would violate FECA contribution limits.44 Because only limited amounts could be raised and outside groups often had policy goals independent of a particular candidate’s election, candidates had less incentive to engage in aggressive collaborative fundraising with PACs that could appear suspicious to observers.45 However, the birth of Super PACs able to accept unlimited contributions and make unlimited independent expenditures has amplified the existence and import of candidate assistance with fundraising efforts46 — and the corruption concerns associated with such fundraising.47
Once Citizens United and SpeechNow.org laid the groundwork for corporations and labor unions to make unlimited independent expenditures, the FEC recognized as a natural outgrowth their ability to also “pool unlimited funds in an independent expenditure–only political committee.”48 Though Citizens United specifically addressed only unlimited independent expenditures by corporations,49 the FEC stretched the Court’s analysis to provide that any person, including individual members of the “general public,” could pool their funds in these new independent expenditure–only groups as long as the common-pool expenditures were made independently of candidates.50 After the major impact these new Super PACs had in the 2010 elections,51 candidates rushed to take advantage of any opportunity to assist these groups in their fundraising efforts, and the FEC obliged.52
Candidate assistance with Super PAC fundraising has taken several forms53: Candidates may attend Super PAC–hosted fundraisers, and may solicit contributions up to the federal limits on behalf of those groups.54 Candidates may use common vendors with Super PACs, such as fundraising consultants,55 which often raises questions about whether these vendors are improperly sharing nonpublic information between the candidates and Super PACs.56 Super PACs also may solicit contributions from the wealthy family and friends of a candidate above the amounts the candidate would be able to solicit directly,57 sometimes even using lists of potential donors supplied by the candidate.58
Since much of this collaborative activity is so new and the line of permissibility so underdeveloped,59 it is not rare for candidates at both the state and federal levels to be accused of engaging in impermissible coordination with Super PACs.60 For example, election watchdog groups filed a complaint with the FEC against U.S. Senator David Vitter, a candidate for Governor of Louisiana, for violating federal contribution and source limitations in assisting with fundraising for a Super PAC that was set up to “support and promote [his] candidacies for both U.S. Senate and governor of Louisiana.”61 Additionally, at least one member of Congress has already faced an investigation by the Office of Congressional Ethics for soliciting contributions for a Super PAC above the legal limit of $5000.62
Despite the proliferation of coordination allegations,63 candidates are unlikely to shy away from assisting Super PAC fundraising activities, considering the key role many Super PACs have played in recent elections.64 These activities are also unlikely to be subject to substantial enforcement under the current campaign finance regime. Some legislative efforts have been undertaken to change this regime: Several state legislatures have passed resolutions urging an amendment to the U.S. Constitution that would effectively overturn Citizens United,65 which could in turn impact the legal status (and fundraising ability) of Super PACs. A group of influential campaign finance scholars and practitioners has drafted a piece of model legislation, called the American Anti-Corruption Act, which would amend FECA to prohibit independent expenditures made using “any assistance, including the solicitation of funds, from any individual who is the candidate benefited by such expenditure.”66 However, given the relative difficulty of passing a constitutional amendment or federal legislation (due to partisan gridlock), FEC regulations and state legislative and regulatory efforts are likely the most viable means for addressing the growing problem of candidate assistance with Super PAC fundraising.
II. The Limitations of Current Federal and State Regimes
In the wake of increased fundraising collaboration between candidates and Super PACs, the FEC and several state regulators have begun drawing lines regarding what constitutes permissible coordination in this area. Because traditional PACs have not been required to maintain rigid independence from candidates in their expenditures, as is strictly required of Super PACs, the question of whether collaboration in fundraising threatened the independence of the resulting expenditure was not vital to the operation of traditional PACs. This question is key, however, to the existence of Super PACs. As many definitions of “coordination” in state and federal campaign finance law were written before the genesis of Super PACs, such laws generally do not clearly state which actions constitute coordination sufficient to threaten the independence of an expenditure made by an organization that may make only independent expenditures. However, a few states have begun to flesh out which actions might be sufficient to threaten Super PAC independence. Section II.A examines the FEC’s permissive definition of coordination, which has allowed for the expansive collaborative fundraising discussed in section I.B. Section II.B then provides an overview of state attempts to redefine coordination for their own elections in ways that could impact the ability of candidates to assist with Super PAC fundraising efforts.
As with many areas of campaign finance law, the FEC was an early driving force in endorsing federal candidates’ ability to assist with Super PAC fundraising efforts.67 The FEC’s permissive interpretation of coordinated activity has been criticized for allowing a greater degree of candidate engagement with Super PAC efforts than may be desirable considering the mandate of independence imposed on Super PACs.68 While this permissive understanding of coordination pays deference to the Supreme Court’s holding in Citizens United that election speech should be as free as possible, it does so to the detriment of the interest in preventing quid pro quo corruption.69
The FEC is still governed by a formal definition of “coordination” that was last amended several years before the Citizens United decision and the genesis of Super PACs.70 Under the current definition, an action is coordinated when it is “made in cooperation, consultation or concert with, or at the request or suggestion of, a candidate, a candidate’s authorized committee, or a political party committee.”71 This definition on its face does not clearly delineate which collaborative actions might threaten the independence of an expenditure made by an organization such as a Super PAC.72
The challenge of identifying categories of permissible candidate assistance with Super PAC fundraising was hastily thrust on the FEC. Shortly after the D.C. Circuit’s decision in SpeechNow.org, several congressional leaders sought an advisory opinion regarding their ability both to participate in Super PAC fundraising events and to solicit contributions for Super PACs in unlimited amounts.73 The FEC interpreted federal campaign finance law as authorizing candidates to “attend, speak at, or be featured guests at fundraisers for [Super PACs], at which unlimited individual, corporate, and labor organization contributions will be solicited,”74 though the candidates themselves could “not solicit unlimited contributions” for the Super PACs.75 Those candidates were allowed to solicit contributions of only up to $5000 for Super PACs and were limited in the source of those contributions to “individuals” — which did not include corporations or labor unions — and “any other source not prohibited by [FECA] from making a contribution to a political committee.”76
Though the federal framework often provides a model for state-level campaign finance regimes,77 fundraising collaboration is becoming a key area of divergence: because the FEC’s advisory opinions to date have provided broad collaboration abilities for Super PACs and candidates, some states interested in limiting the potential for corruption have begun adjusting their election laws in response to the growth of Super PACs. Unlike the FEC’s permissive approach to coordination, which allows a candidate to assist with fundraising activities for Super PACs that could impact that candidate’s race, the few state regulations that specifically implicate the issue of coordinated fundraising78 seem to recognize some room for candidate assistance with Super PAC fundraising, but with some limitation on a candidate’s ability to assist Super PACs that support that candidate.79 While still abiding by the Citizens United directive to balance First Amendment interests with the prevention of quid pro quo corruption,80 these state definitions of coordination are generally more responsive to the interest in preventing corruption than the FEC’s permissive regime.
1. Fundraising as Infusing Coordination into an Otherwise-Independent Expenditure. — Minnesota has taken the lead in crafting a definition of coordination that recognizes the integral role of fundraising in any Super PAC expenditure.81 The Minnesota Campaign Finance and Public Disclosure Board determined in early 2014 that “[p]articipation by a candidate in the fundraising efforts or in the promotion of an independent expenditure political committee constitutes cooperation or implied consent that will destroy the independence of an expenditure later made by the independent expenditure political committee to influence the candidate’s election.”82 Seizing on the state’s strict statutory definition of “independent expenditure,”83 the Board assumed that the state “intended to require the highest degree of separation between candidates and independent expenditure spenders that is constitutionally permitted.”84 Because the definition of an independent expenditure prohibited the “cooperation of” the candidate in such an expenditure, the Board inferred that the state intended “no participation of the candidate in any process that leads to the resulting independent expenditure.”85
Though not explicitly relying on Buckley, the Board based its understanding that coordinated fundraising threatened the independence of the resulting expenditure on the same fears of circumvention invoked by the Buckley Court. Specifically, the Board remarked that “permitting candidates to solicit contributions to an independent expenditure political committee that then makes expenditures for that same candidate would provide a way for contributors to circumvent the limits on contributions to a candidate and for candidates to circumvent the limits on campaign expenditures.”86 This circumvention language echoed the language used by the Buckley Court in determining that contribution limits were permissible, because those limits “prevent attempts to circumvent [FECA] through prearranged or coordinated expenditures amounting to disguised contributions.”87 By presenting fundraising as an activity that, if coordinated, could permeate the entire expenditure process and threaten the independence of the expenditure in a way that functionally circumvents permissible contribution limits, the Board thus invoked the threat of quid pro quo corruption in a manner sufficient to support the state’s regulation of coordinated fundraising.88
California has also recognized that coordination at the planning stages of an expenditure may threaten the independence of the entire expenditure, though the state has addressed this concern in a more subtle way. California regulations identify certain actions that create a rebuttable “presumption” that an expenditure was not independent, including when: the expenditure is “based on information about the candidate’s campaign needs or plans provided to the expending person by the candidate,” it is made through an “agent of the candidate in the course of the agent’s involvement in the current campaign,” or “[t]he person making the expenditure retains the services of a person who provides the candidate with professional services related to campaign or fundraising strategy for that same election.”89 The first prong could encompass some collaborative fundraising activities — a finding of coordinated fundraising between a candidate and Super PAC could thus lead to a presumption that the resulting expenditure was not sufficiently independent. The latter two prongs suggest that sharing a fundraising consultant might not be allowed in California even if that common consultant did not share inside information about the candidate’s campaign.90
A January 2014 Maryland State Board of Elections guidance document suggested that Maryland may similarly examine a set of established factors as evidence of coordination, though it did not specifically discuss fundraising.91 The factors included: whether the Super PAC was “[a]cting at the request or suggestion of the candidate,” “[t]he extent to which a candidate shares . . . consultants and other third party vendors with another candidate or person,” “[w]hether the candidate directs or controls access to funds of a political committee,” and “[w]hether the candidate’s name or photo is featured on a solicitation or at the fundraiser event.”92 As with the California factors, the Maryland factors suggest that the decisionmaking process leading up to the expenditure, including fundraising activities, might be indicative of coordination that threatens the independence of the resulting expenditure.
2. Limiting Involvement with Directly Supportive Super PACs. — Permeating the handful of state efforts to address candidate assistance with Super PAC fundraising is the notion that, though collaboration may not be per se problematic, a threat of corruption may arise when the candidate directly assists a Super PAC that may benefit that candidate’s campaign. Two recent statutes in Connecticut and Arizona have attempted to minimize corruption concerns by suggesting that Super PAC participation in a candidate’s race might be an appropriate dividing line at which to impose a coordination limitation.
A Connecticut law passed in 2013 attempted to draw such a dividing line: though the law established that “solicitation or fundraising on behalf of [a Super PAC] by a candidate” should “not be presumed to constitute evidence of . . . coordination,” this presumption became rebuttable if the Super PAC “has made or obligated to make independent expenditures in support of such candidate.”93 The law thus suggested that a finding of coordination became more appropriate when a candidate assisted with fundraising efforts for a Super PAC that the candidate knew would benefit his candidacy.
A 2014 Arizona law similarly established that, if a candidate provided a political committee such as a Super PAC with “information about the candidate’s plans, projects or needs . . . with a view toward having the expenditure made,” those interactions could be taken as presumptive evidence of coordination that would destroy an expenditure’s independence.94 This statute prevents a candidate from assisting with Super PAC fundraising that would benefit her own race, if the candidate suggested that the Super PAC make an expenditure on her behalf — such a hint would constitute the provision of information about a candidate’s needs, done with a view toward having an expenditure made.95 However, the prohibition would not apply to a candidate assisting a Super PAC not directly supportive of her candidacy.96
These statutes taken together suggest that states are beginning to carve out a space for candidates to participate in Super PAC fundraising activities, though their participation does not extend to situations where a Super PAC could have an impact on that candidate’s race. This carveout still allows Super PACs to speak freely, and the limitation on candidate involvement is narrowly tailored to prevent only the type of coordination that most threatens actual or apparent quid pro quo corruption.
III. A New Definition of “Coordination”
Employing the principles of the state campaign finance regimes, section III.A proposes a potential framework for the FEC and state election agencies to use in redefining existing understandings of “coordination” to account for coordinated fundraising between candidates and Super PACs. The framework proposed by this Note attempts to limit the threat of corruption while maximizing First Amendment protections by prohibiting candidates from attending Super PAC fundraisers, soliciting contributions for Super PACs, sharing fundraising consultants with Super PACs, and providing lists of supporters for use in Super PAC fundraising. Section III.B argues that this proposal would be a permissible regulation of campaign finance under the Supreme Court’s established justification of preventing quid pro quo corruption or the appearance of such corruption.
This Note proposes that state election agencies and the FEC adopt a new framework for regulating candidate assistance with Super PAC fundraising activities. The goal of preventing quid pro quo corruption or its appearance, upheld in Buckley and Citizens United as a permissible justification for regulating campaign finance, serves as the core organizing principle for this proposed framework. The framework builds on two major notions underlying state efforts to define coordination: collaboration in fundraising permeates (and threatens the independence of) the expenditure, and Super PACs should be completely independent from the candidates whose campaigns they seek to impact.97 Each of these concepts provides a basis for understanding how coordinated fundraising could be seen as a circumvention of contribution limits to candidates that creates a threat of corruption.98
This Note proposes that the FEC and state election agencies redefine “coordination” between candidates and Super PACs to include (and thus prohibit) four specific activities related to fundraising, which have in practice been the most common forms of fundraising collaboration between candidates and Super PACs.99 First, candidates should not be able to attend Super PAC fundraising events.100 Second, candidates should not be able to solicit contributions — whether unlimited or within FECA limits — on behalf of Super PACs.101 Third, candidates and Super PACs should not be able to share outside fundraising consultants.102 Fourth, candidates should not be able to provide lists of supporters directly to Super PACs for use in fundraising efforts.103
Within these general limitations, this Note proposes two exceptions: First, these limitations would not apply to any Super PAC that is involved with a different level or type of election than the level or type of election for which the individual either is a candidate or is considering becoming a candidate in the current election cycle.104 If, after raising money for a Super PAC under this exception, the individual then declared her candidacy for an office of the type that the Super PAC could support, a two-way limitation would be triggered — the candidate could not assist in any future fundraising for the Super PAC during that election cycle, and the Super PAC would be prohibited from expending any funds (even independently) within that election cycle in support of the candidate.105 Second, these limitations would only apply during the specific two-year election cycle for which that individual is an active candidate for office.106 However, this exception would never apply to a single-candidate Super PAC — if a Super PAC made, say, ninety percent or more of its expenditures in support of a single individual within an election cycle, that individual would never be able to assist with fundraising for the Super PAC, even outside the two-year window.107
The framework proposed in section III.A attempts to balance First Amendment protections with an interest in limiting quid pro quo corruption or its appearance.108 After Citizens United, any regulation limiting a candidate’s ability to assist with Super PAC fundraising activities must be justified by a substantial fear of quid pro quo corruption or the appearance of such corruption.109 Because the Court has determined that independent expenditures as a categorical matter do not give rise to corruption or its appearance,110 any regulation of fundraising by Super PACs on the basis of corruption will depend on a determination that their independent expenditures are “not truly ‘independent’ in any meaningful sense of the word.”111
The threat of quid pro quo corruption is present where an organization is able to raise unlimited funds with a disregard for contribution limits, and spend those unlimited funds in a manner that is functionally coordinated with the candidate so as to “amount to disguised contributions.”112 By functionally circumventing legal contribution limits,113 Super PACs are able to have an outsized impact on candidates compared to other contributors,114 providing an incentive for the candidates to reward major Super PAC donors with special favors.115 These corruption concerns are at their highest when Super PACs begin to operate as a routinized workaround for wealthy donors who have already contributed the maximum allowed amount directly to a candidate’s campaign.116 Even if fundraising collaboration does not cause actual quid pro quo corruption, this relationship provides the appearance of such corruption sufficient to justify regulation.117
The proposed framework seeks to vindicate this interest in preventing quid pro quo corruption or its appearance by setting the boundaries of impermissible coordination at the point where they begin to pose corruption concerns. Candidate assistance with Super PAC fundraising pushes at the boundaries of what makes an expenditure sufficiently “independent,” as Super PAC expenditures must be in order for the organizations to maintain their legal status. The independence of such expenditures begins to break down if fundraising is conceptualized as an integral part of the process through which an expenditure is made and which is thus inseparable from the actual monetary expenditure118 — because an expenditure necessitates that there first be funds to be expended, fundraising can be seen as an integral portion of an independent expenditure, inseparable from the actual payment of money to purchase advertising time.119 If Super PAC fundraising is coordinated with a candidate, this coordination permeates the entire chain of the expenditure made using those funds and destroys the independence of the resulting expenditure.120 The four major proposed limitations thus serve to prevent Super PACs from circumventing contribution limits through coordinated fundraising activity.
The two exceptions, on the other hand, seek to preserve as much First Amendment freedom as possible by restricting these coordination limits to situations where a threat of quid pro quo behavior is present. After Citizens United, any rule governing campaign finance must be sufficiently narrowly tailored to the prevention of quid pro quo corruption to survive First Amendment scrutiny.121 As Arizona and Connecticut have suggested, the greatest threat of corruption exists in situations where a candidate is able to coordinate fundraising with a Super PAC that may make expenditures on that candidate’s behalf. Where the candidate is not directly affected by the Super PAC’s expenditures — even where the candidate supports such expenditures — there is a lesser threat of quid pro quo corruption, and thus strict regulation of coordination is less appropriate.122 The use of time restrictions to separate candidate assistance with Super PAC fundraising from Super PACs’ assistance to those candidates through expenditures similarly lessens the potential for quid pro quo behavior.123
Super PACs are limited to making only independent expenditures as a condition of their existence. Candidate assistance with Super PAC fundraising efforts has pushed at the boundaries of this legally mandated independence, allowing a level of coordination that many observers believe creates a real threat of quid pro quo corruption. State actors have begun to beat back this coordination, both by conceptualizing coordinated fundraising as an activity that permeates the entire process of making an expenditure (thereby threatening the expenditure’s independence) and by imposing limits on candidate fundraising for Super PACs that might impact that candidate’s success. The FEC and state election agencies should seize on these efforts and adopt new definitions of fundraising coordination that impose limitations such as those included in the framework proposed by this Note.