The Question of Super PACs in the Post-Buckley World

August 3, 2015
posted by Bob Bauer

The court’s worst blunder, she said, was its 2010 decision in Citizens United “because of what has happened to elections in the United States and the huge amount of money it takes to run for office.”

This is what Justice Ginsburg has said, but is not clear without a bit of guesswork which she means.  But it seems to be about “what has happened to elections”, including cost, and not so much how the conduct of elections translates into bad or corrupt government.  One cannot read too much into it: the comment is short, but her few words describe a problem with the electoral process.

Distortion of that process, or the interference with its ideal functioning, is a major worry for those observing money in politics, separate from any consequences for the integrity of government that the politicians, once elected, are responsible for running. This electoral corruption of elections is different from the quid pro quo corruption of government that animates the strictly constitutional and legal debate.

In Friday’s New York Times, Stuart Stevens refers to just the electoral impacts of campaign finance when discussing the effects of Super PACs in altering the character of Presidential primary competition.  A number of the now 17 candidates entering the Republican Presidential primary have jumped in with the confidence that, with a Super PAC at their side, they have the resources to hang in there for a spell. Doing well in the first primaries is no long an invariable condition of viability.  Stevens is not all that worried about it: he likes the free-for-all.  Others are less sure.

These understandings of “corruption” can be, and often are, conflated, but are very different.  The case against Super PACs as agents for electoral corruption is straightforward: a handful of individuals can float a candidacy lacking in more general public support and keep it artificially alive.  The costs increase for other candidates; debate stages are crowded with contenders who are not truly viable over the long-term; and the mechanism by which public preference is measured is skewed.

Perhaps for this reason, it goes unnoticed that arguments directly related to government corruption—and proposals for reform based on them—seem, by contrast, increasingly clouded and tenuous.

An interesting example is the primary pending legislative measure to rein in what its sponsors take to be illegal coordination of Super PAC independent spending. “The Stop Super-PAC Candidate Coordination Act” would tighten in a number of respects the coordination standard, requiring an organization that would make unlimited expenditures to be “entirely” independent of the candidate. But the proposal exempts discussions the spender might have with the candidate about her, the candidate’s, “position on a legislative or policy matter (including urging the candidate or committee to adopt that person’s position,” so long as the discussion does not include communication about “the candidate’s or committee’s campaign advertising message, strategy, policy, polling, allocation of resources, fundraising, or other campaign activities.” “No” such campaign-related communication is allowed.

This provision is meant, of course, to protect constitutional limits on coordination restrictions. It is good to have them spelled out in the law. At the same time, it is striking that an independent committee can bargain with the candidate on policy while deliberating over whether to support her, and to what extent. The candidate would know she was being “interviewed” or tested. Neither she nor the committee would have to enter into an exchange of cash for policy: the sequence of events would speak for themselves. The candidate pitches her reliability on the policy favored by the committee, and the committee may then spend lavishly, without legal limits, on her behalf.

This is all fine, by the terms of the law, but what the candidate and spender cannot do is discuss the campaign. Policy, yes: and the positions that the spender would like the candidate to adopt. But there can be “no communication” about the campaign, lest the money spent be so well tuned to the candidate’s needs that we should think of it as a “contribution in-kind” that exceeded the applicable limits. The contribution limits have been enforced, in one sense, but with what practical effect on the prevention of corruption or its appearance?

This exchange is permissible:

Super PAC: As you know, we can spend without limit in this race. We are concerned about the candidates’ position on gun control: do you favor more expansive background checks? And where would this issue rank among your legislative priorities if you were elected.

Candidate: I oppose it. And stopping any move in that direction would be among my highest priorities.

Super PAC: We’ re delighted to hear it.

This exchange is not permissible:

Super PAC: As you know, we can spend without limit in this race. As an organization dedicated to the protection of Second Amendment rights, we would like to know how you propose to distinguish yourself from the other candidates on this issue. And what emphasis will this issue receive in your campaign?

 Candidate: I am going to contrast my consistency on background checks with the Johnnys-come-lately. And this is going to be a major part of my earned media push. How much I can build it into my paid media will depend on what I can raise.

 Super PAC: We’re delighted to hear it.

On the Buckley view of the world, the discussion of campaigns—rather than the discussion of policy—presents a special risk. Now the campaign can perfect its expenditures, making them more useful to the candidate and a better bet to gain ground for her.   But how much of real value the Super PAC extracts from a communication like this one is a fair question. Is it truly unavailable from other sources—from what the candidate has said publicly, or provided in materials, emails or on the web?   In the project of limiting the threat of corruption, or its appearance, is this communication about the campaign, at this level of generality, more troubling than the interview by which the PAC, checkbook in the background, confirms face-to-face the candidate’s commitment on its issue?

The advent of the single-candidate Super PAC adds to the complexities of the corruption analysis. Under reform measures like “Stop Super-PAC,” neither prong of the test for communications–allowing for policy but not campaign discussions–does much work in the single-candidate PAC setting. The single-candidate committee run by allies and former associates has little need for the policy-based discussions. They’re on board: they know and like the candidate, and they took on the project because they were confident from personal and professional ties that they knew what kind of candidate, associated with and promoting particular policies, they were getting.

But the ban on any communications about the campaign won’t cause them trouble, either. These organizations are often, if not most of the time, run by professionals deeply knowledgeable about the strategic landscape, and they have at their disposal the means of determining what would be useful to the candidate they support. Their purpose as a single-candidate committee is to identify the spending most valuable to that one campaign.  This is what they do.

The bill attempts to strike at the sources of this expertise, by disqualifying from PAC management individuals with ties to the candidate within the preceding four years, or common vendors who have provided services to the campaign within the last two. In these cases, the assumption is that the prior experience with candidate provides the committee with special insight–with more direct information–about what spending would best serve the campaign’s interests. But expertise without the personal history can get the PAC to the same place, or nearby.

It can be argued that the law governing independent expenditures can only do the best it can. It remains a problem, however, if on a Buckley view of the world, the law and the measures to strengthen it must miss the mark because campaign finance has entered into a post-Buckley reality. In this new world, the contribution-independent expenditure distinction is being put to a severe test and is largely failing it. Meanwhile, even as the old debate goes on about the corruption of government, much of the anxiety about Super PACs is really produced by, in Justice Ginsburg’s words, “what has happened to elections in the United States.”

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