Super PACs in the Electoral Process

March 31, 2015
posted by Bob Bauer

The Super PAC is the leading issue in campaign finance, and this is only superficially because it is new, exotic and, to many who write about it, alarming.  It has without question brought to head the fault line running through the contribution-expenditure distinction and expedited the obsolescence of the Buckley framework.  And it is forcing the question of whether we should be concerned in campaign finance about corruption or its appearance, or perhaps about something else.  And the answer is “something else.”

By now it is generally accepted that massive independent expenditures are not much less corrupting, if “corruption” is the issue, than contributions.  Nothing fancy is required to reach this conclusion.  If a contribution wins the maker an audience with the candidate after the election, then the independent spender can count on a return call or meeting in which she can press her case.  There is nothing necessarily questionable about this after-the-fact communication; no need for elaborate, contemporaneous “coordination” when the expenditures are made.

The Buckley Court thought the candidate might be less indebted to the independent spender because that spender, uninformed by the lack of consultation with the candidate, might not have spent wisely.  But some do spend wisely, and with all the polling data and information that is available without technical “coordination,” most can achieve enough wisdom to be included among the candidate’s recognized friends and allies.

So this has led to claims about rampant qui pro quo corruption and its link to the strength (or absence) of strong campaign finance laws.  But the studies over many years do not support this position and recent scholarship, like Rick Hasen’s, drives the point home.  Corruption there may be, but campaign finance law and Super PACs in particular have not been shown to be the source.

But the questions presented by super PACs cannot end there, rising or falling on demonstrated corruption of government. They have, or may soon be shown to have, effects on the electoral process.  Walter Shapiro reflects on the possibility that a third-party candidacy may come to be tried and perhaps succeed primarily on the strength of Super PAC spending.  Others have noted that major party candidates with minimal demonstrated support in the primary electorate can live to fight another day, as they have in the past, because they have a dedicated Super PAC on their side.  Super PACs may also become the critical vehicle of choice for assisting candidates with the tricky business of managing negative campaigning – – the attacks they want to mount and/or the ones they want to defend against.

This role within the electoral process, affecting campaign organization, resource allocation and strategy, may expand still more.  Some predict that Super PACs are about to discharge “more traditional campaign duties ranging from field organizing and voter turnout to direct mail and digital micro-targeting.”  One consultant cited in a Time piece on the subject, the title of which is “How Super PACs are Taking Over,” proclaims that “[T]hey are becoming de facto campaigns.”

The reform discussion of Super PACs could use, then, a turn in direction–to their effects on campaigns.  The point gets lost in arguments about corruption in part because it is also about a kind of perceived corruption: the corruption of campaigns, not so much the corruption of government. The voters who are “disgusted” with campaigns and the money spent on them tend to ascribe their dissatisfaction to the quality of the campaigns themselves: their tone, length, transparency, and more. And candidates and parties are not happier: they are disgruntled with this state of affairs for various reasons, some having to do with the flexibility, inefficiencies, costs and legal risks they have to negotiate to make sense of this world of Super PACs.

Once the Super PAC problem is situated within the campaign sphere, the possibility of dealing with it through regulation, such as the proposed clamping down on “coordination,” becomes more remote.  As the Supreme Court, and not only he Roberts Court, has said for years, the political campaign is where First Amendment guarantees have their most urgent application.  This could change if there is a shift in the jurisprudence to an equality-based rationale which focuses on equal participatory rights within the campaign sphere.  But this Court is not now open for business on this issue.

More realistically in the short or near term, the Buckley scheme of regulation could bear further adjustment to address the electoral distortions associated with Super PACs.  These arise mainly from the clash of an old model of regulation and major changes in constitutional law: the Super PACs can do what the parties and candidates cannot, and it gives them the growing capacity to alter the character and course of political campaigns.  Substantially higher contribution limits for candidates and parties would help to redress the imbalance, as would greater authority for parties and parties to freely coordinate their mutually supportive activities.   And for the voters’ purposes, there is value in the further step of establishing parity in the disclosure requirements that all major spenders have to follow.

This is not a de-regulatory program; it is not the picture of what a stable, reformed campaign finance regime over time would entail or require.  It is a transitional step, partly de-regulatory and partly not (as in the case of strengthened disclosure), and it is a response to a state of affairs in the electoral process that makes little sense.

It will remain important to stay clear about the subject of reform discussion—the quality of campaigns or the integrity of government.  There are links there, of course, but distinctions to be drawn.  And in the case of Super PACs, the distinction leads to very different conclusions about what reform now, in the onset of the post-Buckley era, requires.

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