Tyler Harber’s prosecution, and the two year federal prison sentence he recently received, are clearly warning shots across the bow of federal political campaigns around the country. And the blatant and unsympathetic nature of Mr. Harber’s crime should give no comfort to those watching and advising political candidates and campaigns.  The United States Department of Justice means to pursue the illegal coordination between official campaigns and Super PACs, and Mr. Harber’s is the first of many investigations into the world of big money politics coming to an election cycle near you. 

Now, Mr. Harber is not a guy who engenders much sympathy.  During a three month period in 2012 he was Campaign Manager and general consultant for a Congressional Candidate in Virginia.  While leading that campaign he directly coordinated and participated in the purchase of $325,000 in advertising by a political action committee (PAC) that opposed his candidate’s opponent, and thus benefitted his candidate.  He was paid more than $9,000 as a “commission” for his work.

Worse, beyond consulting with the political action committee, Harber directed the committee’s activities, solicited contributions to the committee and lied to donors about the cost of overhead associated with running the committee, all while skimming nearly a quarter of the contributed money for his own personal benefit.  According to press accounts, Harber’s own party got fed up with his illegal conduct and blew the whistle on him.  The next thing Harber knew he was being interviewed by FBI agents at his home.  His mother was also interviewed in her home, and, according to the Government’s evidence, both of them lied during their interviews.        

It doesn’t get much worse than having your mother lie for you, being turned in by your own party and receiving an active federal prison sentence.  But, while all the political operatives in the country get a good laugh at Tyler’s expense, we should not miss the importance of the prosecution.  It signals trouble ahead for political campaigns, Super PACs and those who run them.

In announcing Mr. Harber’s guilty plea in February of this year, Justice Department officials highlighted this as the “[f]irst criminal prosecution in the United States based upon the coordination of campaign contributions between political committees.”[1]  And the Department committed itself to “addressing the threat posed to the integrity of federal primary and general elections by coordinated campaign contributions… [through] aggressive [prosecution] at every appropriate opportunity.”  Statement of Assistant Attorney General Leslie R. Caldwell, Press Release, United States Department of Justice, February 12, 2015.

These statements follow years of Justice Department complaints about the effect of the United States Supreme Court’s decision in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).  Regardless of one’s political perspective, there is no denying that the Citizens United decision, which struck down the statutory ban on independent political contributions by corporations, labor unions and other previously barred entities, has opened new channels of money which now flood the election process.  And with the rise in potential independent funding sources, there has been a dramatic increase in the number of political action committees anxious to receive those funds and to use them to influence the political process.

Under the Federal Election Act, Title 52, United States Code 30101, et seq., there are several provisions that define the relationship between a candidate’s official campaign and an independent political action committee.  Under the Act, expenditures by a person or organization in cooperation, consultation, or concert with, or at the request or suggestion of, the agents of a federal candidate or that candidate’s authorized committee are deemed a contribution to the candidate’s campaign, and, thus, subject to the contribution limits imposed by federal law on donors to federal campaigns.

“Independent expenditure only committees” however, may raise unlimited amounts of money from individuals and from various sources that are prohibited from contributing to a federal candidate’s authorized committee.  And they may independently spend unlimited amounts of money to influence federal elections.  However, independent expenditure only committees must remain independent, and they may not make any contribution to a federal candidate’s authorized committee, either directly or by coordination of their expenditures with the candidate’s committee.  Mr. Harber violated the law by coordinating message, marketing, and ad placements between the campaign he was running and the political action committee favoring his candidate.  His commission, the misleading of donors and his mother’s lies were merely icing on the cake which made the case more interesting and more winnable for the prosecutor.  But they weren’t necessary to legally prove his crime.  And this is where candidates and those running PACs should take note. 

The Department of Justice has been complaining about the sea of cash since the Citizens United case.  And they brought the Harber prosecution to begin addressing this issue.  Indeed, in seeking a four year sentence for Harber the Department sounded the alarm loudly.  In the Government’s sentencing brief prosecutors made no bones about their position.  “This is the first illegal coordination case prosecuted before a United States District Court.  It occurs in the context of expanding opportunities for coordination crimes as ever more money enters the control of political operatives like the defendant.  The [requested sentence] of imprisonment in this case would send an appropriate and much needed message to all similarly situated individuals that intentional breaches of the campaign finance laws will be pursued and punished.”  In other words, this is just the beginning and the Department intends to pursue investigations and prosecutions based on close relationships between campaigns and political action committees advocating for a candidate or against a candidate’s opponent.

So, what must a candidate or PAC manager do to avoid having the FBI show up with subpoenas and a long list of questions?  How can you avoid the pain of a grand jury investigation? And how can you learn from Mr. Harber’s prosecution?  First, don’t coordinate.  Maintain a strict and demonstrable distance between the official campaign organization and any PAC that advocates for your candidate or against his or her opponent.  Be ready to demonstrate – dare I say prove – that there is no coordinating relationship.  Second, avoid filling the ranks of the PAC with long-time campaign operatives with close political and even family ties to the candidate.  These will be clear red flags.  Third, consider that regular campaign lawyers may not be the best source for advice on what constitutes coordination and to provide “advice of counsel” cover for any action you choose to take.  You’ll need help in ensuring compliance with the law, talking plainly to an army of political operatives and supporters and providing you with a viable legal defense when the Department of Justice comes calling.  Because, no matter what you think of Tyler Harber, the Justice Department is coming.