What to do about super PACs? Joel Gora, no admirer of campaign finance restrictions, argues that we should defend them. Joel Gora, Free Speech, Fair Elections, and Campaign Finance Laws: Can They Co-Exist? Brooklyn Law School, Legal Studies Paper No. 346 (2013). If they have come to typify the problems with money in politics, Gora contends, it is because we fail to appreciate their contribution to free speech, or their origins in long-standing independent expenditure jurisprudence. He adds: they didn’t have the impact on the outcome that their critics widely feared. In other words, super PACs are good things, not bad things.

This is a recurring feature of the campaign finance debate: the one practice or development in a period of time that is taken to represent, and dramatizes, the failure of the entire “system.” Once this was the simple, every-day PAC, now it is the super PACs; once it was political party soft money spent in coordination with candidates, and now it is unlimited independent expenditures by non-party organizations. Wealthy Fortune 500 corporations were the worry of those who were agitated by PACs. Now wealthy individuals funding super PACs are more the centers of attention.

Common to many or all of these preoccupations are a number of concerns: a breakdown in contribution limits or disclosure requirements, or additional advantages to those who have superior resources, or a presumed aggravation of the coarseness of public debate. But there are differences, too. In any period, the problem singled out for special attention—the one deemed particularly meaningful—shapes, and not always in the expected ways, the direction of reform debate.

This may seem obvious—the problem identified necessarily leads to the reform proposed—but which problem is held out as the most urgent, and how it is to be addressed, involves choices. And this is true, too, of the intense attention drawn by super PACs. The issue is put into perspective by comparing this period with the ones before it—the issues then and now, the reform debate in various phases over time and as we find it today.

The Corporate PAC:

The PAC raises and spends under limits, and with full disclosure, but the rise of the PAC and its proliferation was greeted in reform quarters with dismay. In part this was a fear that the FEC, already eyed with suspicion, had justified the doubters by administrative interpretations favorable to corporate PACs and indispensable to their utility. The FEC, with two Democrats dissenting, authorized these committees to raise money from their executives, not only from their shareholders. And when the numbers of PACs rose, it seemed to critics that organized interests would overwhelm the “system” and flood out other voices.

So, among other responses, the Twentieth Century Fund appointed a panel of experts and published a Report, What Price PACs?, that opened by noting the “rapid growth” in PACs as a “source of concern and apprehension of many Americans.” What Price PACs?, Report of the Twentieth Century Fund Task Force on Political Action Committees (1984) at 3. PACs had become, the Task Force wrote, “the quintessential organizations of the new campaign politics.” Id. They had come about unexpectedly, in part the result of reforms such as public financing, and their danger was undue influence over the legislative process.

One could say that this is was the phase of “unintended consequences.” Solutions were conceivable, and the Task Force recommended a package of them that included limits on the total PAC contributions a candidate could receive in an election cycle, more fundraising and spending power for strengthened political parties and voluntary partial public financing. The Task Force recognized that legislative authority was constrained by constitutional jurisprudence, but the courts were patrolling boundaries rather than removing large swaths of territory from legislative action. In recommendations like those of the Task Force, there was the belief that useful remedies could be pursued within the space defined by the Buckley jurisprudence.

Soft Money and the Political Parties

From the 1990’s through the enactment of McCain-Feingold, political party and “outside group” soft money held sway in the reform debate. It bears noting that McCain-Feingold largely neglected “PACs”; they barely merited a second thought by then.

The question in this period was primarily whether money essentially unrestricted in source and volume was coursing through the system—directly through shell parties into the hands of officeholders, or spent for their benefit by groups funding “issue ads.” This was a controversy about Watergate-style corruption, except that what counted as corruption was given a fresh and fairly open-ended definition.

The FEC was once again culpable, this time in failing to police the soft money restrictions on candidates. But, unlike the previous period, the constitutional limits confronted in enacting reforms presented obstacles to overcome. Considerable funds and energy were expended on research and scholarship designed to establish the basis for an aggressive assertion of legislative authority.

Super PACs

Then come the super PACs, and they are irreversibly associated with Citizens United and the Court’s choice to place sharp constitutional limits on the regulation of “independent” activity. Around the margins the FEC was still successful in arousing the fury of its critics, who charged the agency with aiding and abetting the judicial drive toward deregulation. But the Court had put itself decisively in charge of campaign finance regulatory affairs—to such an extent that where others saw in the FEC an agency lacking power and uniform commitment to its mission, the Court saw a threat to individual liberty.

Super PACs are not an untended consequence of campaign finance laws, nor, as independent committees, do they lend themselves to the most traditional of the analyses focused on corruption or the appearance of corruption. The Court made itself clear on this issue. It narrowed the type of corruption that Congress can regulate to prevent and elevated the significance of “independence.” Arizona Free Enterprise Club’s Freedom PAC v. Bennett, 131 S. Ct. 2806, 2819-2820 (2011). (Matching funds paid to candidates contending with independent expenditures impermissibly burden the free speech rights of the spender.)

The super PACs as a focus of the reform debate tends to structure the debate as a challenge to Supreme Court jurisprudence. If the debate remains within the standard Buckley framework, the Court has answered already, and the answer is—not much. The Court has emphatically rejected alternative rationales, like the political equality rationale, for constraining speech, and it seems unlikely that even a thoughtful and passionately argued variation on that theme—Larry Lessig’s theory of “dependence corruption”—would move the current Court majority. The Court is also unlikely to be impressed by attempts to impose a limit on independent expenditures by tightening “anti-coordination” standards in the name of preventing “circumvention” of the law.

Some would pin their hopes to a change in the Court’s composition. But a dueling series of 5-4 Courts, the outcome of each such decision dependent on whichever side controls the one vote, is a poor prescription for arriving at a workable, consistent jurisprudence or a reasonably stable body of rules. Some, like Rick Hasen, have argued for refining a progressive jurisprudence and having it ready when the moment comes; but while this labor of reflection and revision is always valuable, it does not seem so far to involve more than modest changes in current lines of argument, or in labeling. Richard L. Hasen, Three Wrong Progressive Approaches (and One Right One) to Campaign Finance Reform, UC Irvine School of Law Legal Studies Research Paper Series No. 2013-117.

Looking Ahead

If there is an answer to super PACs, it may lie in posing a different question and allowing the inquiry to determine the course of the reform debate. What may be needed is a more measured, creative course that recognizes regulatory costs and constitutional conflicts, but facilitates more speech and participation where the resources are harder to come by. Freeing up resources, such as for grassroots mobilization and political parties, might consume more energy. Issues of undue influence might be addressed by attention to lobby law reform, with less weight placed on campaign finance law restrictions. Disclosure requires support, again with sensitivity to the issues it raises and the legitimate fears of its misuse.

Critics of past reform efforts consistently allege overreach and overkill. But they also insist that they are standing for a lively politics, one in which there are open channels of speech. There seems to be room there for a constructive discussion, if we can shake loose from repetitive rounds of debate ushered in by Buckley.

The question may not be what to do about super PACs—whether they are good or bad. It is maybe better framed this way: in a world of super PACs, what are the requirements of a contemporary campaign finance reform?