Super PAC: The Law and The Politics

January 5, 2016
posted by Bob Bauer

The ongoing assessment of Super PACs covers extensive ground, ranging across a number of concerns.  Judgments reached as few months ago are being revised today: for example, it is no longer a sure thing that the candidates supported by the best funded Super PACs have a competitive edge just on the dollars alone.  The only certainty is uncertainty about the role and effect, also the future, of these PACs. Are they a problem for the electoral, or for the governmental, process, or for both, and to what extent can these effects be measured, quantified, pinned down?

The basic bill of particulars against the Super PACs falls into these categories:

  1. The distortion of the electoral process, allowing candidates who “have them” to dominate those who do not.  As noted, there is a diminishing confidence about this.
  1. The distortion of the governmental process, introducing, through unlimited expenditures closely tied to candidates, an elevated risk of corruption
  1. The widening and worsening the problem of political inequality, both as it is and in the electorate’s perception, with consequences for public policy.
  1. The profusion of nasty or negative speech, sparing the candidate requirement of doing the same and accepting responsibility for it

Not all super PAC critics will cite all of these concerns and in some cases it’s not clear which of them are included within the overall complaint.  At this stage of revised judgment, it is thought that perhaps Super PACs will make their marks later in the electoral cycle when voters are more engaged and the heavy spending will make more of a difference– especially in negative advertising.  The  Maggie Haberman article yesterday in The New York Times suggests that we may be returning to this earlier argument about Super PACs: they can’t replace campaigns but they can amplify, negatively, their claims and themes.

But PACs, regular PACs, can do the same, as can tax-exempt “(c)” organizations and those individuals who spend on their own like the billionaire writing his objections to Donald Trump in the sky.  No one can say that Super PACs are pioneers in negative campaign speech, and the difference they make to the volume and effect of negative spending—the difference between this world and a hypothetical one without them– will not be easily measured.

There still remain two distinctive claims that can be made about super PACs and the significance of their emergence, one about the law and the other about politics.

The most obvious, about the law: Super PACs are the curtain being brought down on the Watergate-era campaign finance law. The core governing principle of the law is that different rules apply to contributions and independent expenditures because of their different corruptive effects.  With the coming of Super PACs, the distinction as a doctrinal and practical matter is eroding to the vanishing point.  The Court is being blamed for this, and the FEC also assigned its share of the responsibility; but the Buckley distinction was likely doomed from the start. Super PACs have been built on Buckley’s ruins.

But this is a point of interest to elites and others versed in campaign finance law and policy.  There is also the political point about the Super PACs and their place in a narrative about the failings of government–of the “system.”  A politics perceived to be in good health, producing functional government, would absorb Super PACs with less controversy.  Voters generally care about results more than process, and about process largely to the extent that it is associated with poor results.  It was shown a while ago that campaign finance controls do little to shore up public confidence in government, and that, in the words of David Primo and Jeffrey Milyo, these laws’ effects on citizen trust “is sometimes perverse, rarely positive, and never more than modest.”  David M. Primo and Jeffrey Milyo, Campaign Finance Laws and Political Efficacy: Evidence from the States, 5 Elec. L. J. 23, 36 (2006). But the public may well respond critically to campaign finance activity when it feeds into a perception or experience of more general political dysfunction.

This was apparent in the experience of the first-generation PACs, the ones that were not yet fully “super.” In the mid-1980s until the 1990s, before soft-money took their place as the leading topic in reform argument, PACs, especially corporate or business PACs, were the subject of a “torrid debate.”  David Adamany, Corporate PACs and Federal Campaign Financing Laws,” 49 J. Pol. 1157, 1159 (1987).  They were, Professor Adamany wrote, an evident danger to democracy, a “threat to democratic politics.” David Adamany, PAC Power and What Price PACs, 100 Pol. Sci. Q. 508, 510 (1985).  Other elements of the debate were like those heard today about Super PACs: that the PACs then, like the Super PACs today, were “rapidly approaching parity with parties,” and that measures were needed to strengthen parties with increased contribution and spending limits.”  Id. at 509.

Scholars also noted that the worry about corporate or business PACs was very much a function of lack of confidence about the efficacy or integrity of government more generally.  The two sets of variables with “strong bearing” on public attitudes were (1)“optimism about the nation’s future, future quality of life, the nation’s moral and ethical standards,” and (2) confidence in the nation’s political, judicial, business, and labor systems and in political, business, and labor leadership.”  If there was concern about the influence of these PACs, it was a concern largely shaped by how government was performing: not the influence of PACs per se, but its supposed effects, which explained the public “backlash.”  S. Prakash Sethi and Nobuaki Namiki, The Public Backlash Against PACs, 3 California Management Review 133, 143 (1983).

In the politics of today, the case against Super PACs taps into the distrust of the wealthy and the “insiders” making up the rules of their own benefit in a system that does not serve all others.  And if it also suggests that if there is a belief that the federal campaign finance laws have come apart, this is primarily important because it fits with views about system breakdown across the board.

This perspective accounts for some, if the not the major, part of the clamor about Super PACs, and it is exhibited as well in related concerns expressed in terms like “shadow parties” and “dark money.”  It could have more influence over the reform debates than any of the more specific policy objections and predictions of impact, which are all subject to continuous revision.  But this does not mean assigning less importance to the Super PACs.  For one thing, if there is backlash, it will be felt more widely and keenly than any rules the FEC or the Congress can adopt to prohibit a candidate’s friends from starting a Super PAC or the candidate from expressing approval of the PAC’s ads.

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