More Complaints about Super PACs

February 26, 2016
posted by Bob Bauer

David Frum’s thoughts about Super PACs are a useful reminder that not all the objections to these PACs are the same, not all fall within the usual range of complaints about bought-and-sold government or deepening political inequality.  Frum suggests that PACs may be victimizing donors and suffering abuse at the hands of their consultants, and that candidates, behind claims of independence, can and do disclaim all responsibility for these organizations’ behavior.  This is a set of concerns a few steps removed from the once dominant worry that these PACs would swing elections.

This perspective opens up a discussion of whether Super PACs can be brought within reasonable regulation, to deal with specific problems, without limiting the goal to the difficult and contested one of limiting independent spending.  The choice is between a hunt for anti-coordination strategies, which is essentially the hope to undo the Buckley guarantees for independent expenditures, and developing more conventional rules to account for the emergence of these PACs and the gaps in the regulatory system within which they are operating.

The suggestion has been made here, for example, that a transparency requirement might identify for the public those Super PACs operating in close association with a particular candidate.  Under the Buckley test, the PAC may well be able to spend independently of the candidate, but this is not to be confused with allowing the candidate tightly tied to the PAC to pretend that they are “independent” of each other in all respects.  If the candidate is appearing at the PAC events, supporting its fundraising as a guest speaker or honored guest, the PAC and the candidate have a relationship that is appropriately disclosed to the public.

Frum raises additional issues, drawing on the history of Crossroads: “Had the money all been spent on the intended purposes? Had too much been spent on salaries, fees, expenses, and other forms of personal inurement?”  These are largely concerns about donor rights that the FEC regulations touch upon in other contexts involving other political committees.

For example, FEC rules govern the circumstances in which donors are entitled to refunds, or to the right to affirmatively consent to the use of funds for purposes other than one for which they were originally given.  See, e.g. FEC Advisory Opinion 2013-16 (Nov. 21, 2013)(donor right to refund); FEC Advisory Opinion 2003-29 (November 25, 2003)(donor consent to transfer from nonfederal PAC to affiliated federal PAC).  Should these issues in the case of Super PACs warrant a regulatory response, it might take the form of a limit on how much PAC funding can be committed to overhead rather than spent on voter contact or communication.  Or if not a limit, then a requirement that the PAC disclose the breakdown of its spending, by category, so that the way that its funds have been managed is readily accessible and does not require the report reader to “do the math.”

Frum connects this set of issues to the larger one of the candidate having it both ways: “the Super PAC system insulates politicians from responsibility for the ugliest things their supporters do”, while they and the PAC collaborate on fundraising (and sometimes in the pre-candidacy period, on organization), subject only to a ban on coordinating specific expenditures.  Some see the answer in a root-and-branch change in the constitutional law, in an end to independent expenditures, while others believe that this could perhaps be done more or less by rule, broadening the coordination rules.

There strong opposition to both courses, and the prospect of success on either score is uncertain.  Other options, primarily transparency requirements, address specific forms of abuse and may help prevent the Super PAC “system” from being one that “insulates politicians from responsibility for the ugliest things their supporters do.”

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