This is the Hillary Clinton Scandal No One’s Talking About

Much has been made over ABC News’ investigation which revealed that during Hillary Clinton’s time at the State Department, a Clinton Foundation donor with no experience or expertise in the area, found himself on a government advisory board dealing with top secret nuclear strategy. That news came on the heels of the Inspector General’s damning report regarding Clinton’s emails, which revealed that the former Secretary of State violated the Federal Records Act. But nobody is talking about the scandal that should be rocking her presidential campaign — and is an even bigger deal now that she is the presumptive Democratic nominee. Clinton’s campaign is violating federal election law by coordinating with super PACs.

The Rules

Coordination between an independent expenditure group like a super PAC, and a candidate or his or her campaign, is expressly forbidden. As Joshua Holland of RawStory explains:

The FEC looks at coordination on the level of individual communications. It’s kosher for a super PAC to have general conversations about strategy with a campaign, as long as they don’t work together to produce specific ads.

To determine if there is coordination, the FEC has a three-prong test. According to the FEC’s website, “all three prongs of the test — payment, content and conduct — must be met for a communication to be deemed coordinated and thus an in-kind contribution.”

Without typing the rule guide verbatim, the first prong—payment—simply means who paid for the communication (often meaning advertisement): Was it wholly or only partly by the candidate/campaign? The second prong refers to the subject matter of the communication. For example, would it count as electioneering, or does it expressly advocate for or against a specific candidate?

The third prong, conduct, has three elements: request or suggestion, material involvement, and former employee/independent contractor. Was the communication done at the request or suggestion of a candidate? Was there material involvement by the candidate or party in the content, timing, means or mode of the communication, or the media outlet used? Was the person paying for the communication a former employee or independent contractor of the candidate or party?

However, there are exemptions to these rules barring coordination known as “safe harbors:”

1) Endorsements and solicitations from candidates which will not count as coordination unless done to promote their candidacy, or push for or against state ballot initiatives or referenda..

2) Legislative inquiries meaning “[a] candidate’s or political party committee’s response to an inquiry about that candidate’s or party’s positions on legislative or policy issues, which does not include discussion of campaign plans, projects, activities or needs.”

3) Where an independent expenditure group uses publicly available information to generate a communication, that communication will not to count as coordination unless the communication was a request or suggestion by the candidate’s committee — which is, of course, difficult to prove. However, this safe harbor exempts communications from the other two elements of the “content” prong.

4) Where a firewall between the independent expenditure group and a campaign exists, and is described in a written policy distributed to all affected employees, clients, and consultants, which prevents the sharing of information about the candidate or political party’s plans, projects, activities or needs. “The firewall must be designed and implemented to prohibit the flow of information between employees or consultants providing services for the person paying for the communication; and those currently or previously providing services to the candidate, the authorized committee, the candidate’s opponent, the opponent’s authorized committee or a political party committee.”

These rules can be (and are) confusing. Even many of the people I spoke to who work for the FEC seemed to have a hard time explaining them. With so much confusion, it is not difficult to see how enforcement might be difficult — but more on that later.

How Hillary Clinton Breaks Them

Though Hillary Clinton’s campaign denies coordinating with super PACs, one of those super PACs tells a different story.

Though it calls itself a “strategic research and rapid response team,” Correct The Record (CTR) is a super PAC run by political hitman and Clinton ally, David Brock, which accepts unlimited donations. The International Business Times reported that Clinton’s campaign has donated to CTR to the tune of more than $280,000.

Officials for CTR have admitted to coordinating with Clinton’s campaign. They claim to be exploiting a legal “loophole.”

Initially CTR claimed that said loophole involved the FEC’s “internet exemption” which says that online volunteer activities by uncompensated individuals do not count as expenditures, and are therefore exempt from the three prongs of the coordination test. However, that defense rang hollow as the Washington Post reported in May, 2015, saying it was unclear how CTR would be able to exploit the internet exemption given the fact that pays its employees (and freelancers) to publish and generate content online. Just recently, in fact, CTR announced it is spending $1 million on cyber trolls in an effort known as “Barrier Breakers.”

In light of this apparent problem CTR seemingly changed its tune. WaPo updated its report with the following:

Correct the Record officials say they are not relying on the individual Internet exemption, but rather a related exemption in the definition of coordinated communications.

Still, the Los Angeles Times put out an article several months later which cited a spokesperson for CTR falling back on their original defense. And all of this reporting was done in 2015. So at this point, all we know is coordination is occurring, and it is more than likely illegal as none of the exemptions appear to apply to CTR’s work.

I reached out to CTR multiple times (including twice on Twitter — to both their main account and to David Brock) to find out exactly what exemption they are referring to, but have yet to hear back. I will update this piece if and when I receive a response.

Hey @CorrectRecord, please let me know what section of the FEC’s rules allows coordination with Clinton’s campaign. I’m writing an article.

— Walker Bragman (@WalkerBragman) June 14, 2016

Could you tell me, @davidbrockdc, which exemption in federal election law allows @CorrectRecord to coordinate with Clinton’s campaign?

— Walker Bragman (@WalkerBragman) June 17, 2016

Why She’ll Get Away With It

Of course, in what many would call the defining feature of her political existence, just because what Hillary Clinton is doing is illegal does not mean she will face legal consequences for it.

The landmark Supreme Court decision in Buckley v. Valeo tied campaign finance to the First Amendment’s free speech protections, holding that money is essentially a vehicle for speech. That case and its progeny have thrown a monkey wrench into the works when it comes to regulating money in politics. The resulting political pressure on regulators has been immense — especially in election years.

The FEC Chairperson, Ann M. Ravel, recently announced that the regulatory agency has (unsurprisingly) found itself unable to curb election law abuses. The six member panel of commissioners is not allowed more than three members from any one political party. Right now, two are Democrats, one is an independent, and three are Republicans. Along with the aforementioned political pressure, the partisan divide is preventing enforcement.

That is because, according to a spokesperson for the FEC, “[a] vote of at least four Commissioners is needed at every stage, including whether to (1) find reason to believe and initiate an investigation, (2) find probable cause that a violation has occurred or is about to occur, (3) settle a matter, or (4) authorize filing a lawsuit. If there are not four votes at any stage, the Commission will not proceed to the next step of the process.”

This sorry state of affairs is allowing politicians to openly defy federal laws. Hillary Clinton and CTR are by no means the only guilty parties, but they are perhaps due for greater scrutiny given the fact that the former is the presumptive presidential nominee for a major party.

All enforcement matters are private until resolved, so there may come a day when CTR and Clinton are held accountable. However, if nothing changes, it is unlikely.

Why It Matters

It is also important to note that simply because Clinton is not the only politician engaging in this practice is no excuse for breaking the law. As the Los Angeles Times reports:

This presidential cycle, that rule is being stretched like never before, as super PACs shadow candidates and take on roles once reserved for the campaign organizations themselves — even staging campaign rallies.

Many of the super PACs and the campaigns are run by a revolving door of close friends and staffers, ensuring that the two sides share a common playbook even when they avoid tripping over the vague Federal Election Commission rules banning coordination.

While the 2016 GOP presidential candidates almost all engaged in this practice — with the exception of Trump — that’s irrelevant. Throughout the primary Hillary Clinton promised to reform campaign finance, an issue Senator Bernie Sanders brought to the forefront of the national conversation. Her disregard for federal election law belies that promise.

And that’s a serious problem because of what is at stake is nothing less than our democratic process — the heart of our republic. Campaign finance reform is not just some nebulous idea that doesn’t matter or can wait. Policy outcomes for virtually every other major issue hinge on it — just look at the gun control issue. Who our elected leaders listen to matters.

There are more ways than ever for wealthy individuals to influence government and manipulate the public. The amount of money being spent on elections has reached unprecedented highs, which has translated into legislators spending literally 50 percent of their time fundraising. Is it any wonder that studies are beginning to show that the collective voice of the American people has a negligible effect on policy outcomes when compared with the demands of the elite?

Government that listens to its people is the central principle of American democracy — and it is being eroded by a handful of powerful individuals, and a larger number of complacent politicians.