Super PACs and Concerns about Political Equality

February 12, 2016
posted by Bob Bauer

This is the main point urged on the reader in this paper on Super PACs: they’re unlikely to disappear, because they are product of the logic of Buckley rather than a distortion of it.  Without a major change in the constitutional law, it is difficult to see how significant limits on Super PACs can be legislated or brought about by regulatory fiat.  Moreover, the “anti-coordination” rules that many are calling for would entangle and damage political organizations other than super PACs and raise legitimate, serious free speech and association issues.

At the same time, there is room for reform–some adjustment to the regulatory process–that would account for the Super PACs’ emergence and widening impact.  Transparency measures can clearly identify for the public those single-candidate Super PACs operating with the candidate’s active support and involvement.  Additional resources could be made available to other actors–parties and others–that are now more regulated than Super PACs and, and in part for that reason, steadily losing ground to them. The goal would not be a deregulated campaign finance system but one that is more rationally structured and coherent.

Rick Hasen worries that the “cure may be worse than the disease.”  He is suspicious or concerned that this is a move to restore the soft-money days that McCain-Feingold was supposed to close out.  But the proposal is not inspired by special solicitude for parties.  Parties are one of a number of electorally active organizations that would benefit from an infusion of resources but there is no case for making them the only ones.  Targeted regulatory relief should be available for other membership-based organizations, and even to candidates when conducting particular voter mobilization activities.

What Rick and others overlook, minimize, or dispute is the role of reinvigorated associational activity in enhancing political equality–in advancing the goal of “the quality of inputs” that Rick champions.  In his very good book, Plutocrats United, Rick does not grapple with the dependence of political equality on organizing and other means of building political strength on numbers, particularly among the very population of citizens he is most concerned with: those with modest resources.  As Guy-Uriel Charles has summed up the significance of association, its “main principle…is that of effective aggregation: an individual must have a reasonable opportunity to join with like-minded others for the purpose of acquiring political power.”  Guy-Uriel E. Charles, Racial Identity, Electoral Structures, and the First Amendment Right of Association, 91 Cal. L. Rev. 1209, 1248-1249 (2003).

Offering the voters the voucher Rick favors, then wishing her well, is fine, and there is much to be said for public financing experimentation (so long as it is accompanied with modest expectations about its effects).  It is not clear, however, how it can be said that steps like this vindicate Rick’s principle that “each voter [is] entitled to equal political power.”  Plutocrats United, at 70.    It is particularly hard to see how this principle, implemented with vouchers, can bring about meaningful equality for each voter in both “election and policy outcomes.” (Emphasis added) Id. at 100.  Associational engagement provides voters with the means to engage in elections and then beyond, into the next phase of public policy debate and formation when the voucher money has run out but the private lobbying dollars are in ample supply.  This is how individuals of modest means stand their best chance of holding their own against the “plutocrats.”

The “problem” with Super PACs is not far from the one that Rick identifies, namely, that as matters now stand, a small circle of well-heeled individuals can utilize this type of organization to expand their influence over the electoral process, or a candidate and a select group of donors may enter into such close alliance through the PAC that it operates as a donor-dominated subsidiary of the candidate’s formal campaign committee.  But the danger to the ideal of political equality lies in these organizations’ access to preferential treatment under the law.  Other associations—within the political process, like parties, or one outside of it in the larger civil society–remain heavily regulated, and restricted in what they can do, while representing a wider range of interests.

Rick, however, writes in his book: “Fighting the appropriate balance between political equality and First Amendment rights of speech and association is the nub of the issue.” Id.  In this sentence, he puts equality on one side of the scale and association on the other when, in fact, the achievement of effective, meaningful equality may depend on the breath and depth of the support provided to associational interests and engagement.  And it is not simply a “speech” issue.  As noted here many times, First Amendment interests comprise a right to “do politics”.

The paper on super PACs does not focus solely on parties and it is not meant to be special pleading for that one kind of association.  It looks more broadly to ways that money can be spent in politics to expand political participation and to reward organizations with that mission, giving them a fighting chance to compete with Super PACs.  If we fail to do that, while some with more ambitious hopes for re-regulation wait for the magic fifth vote to be added to the Supreme Court, we will see Super PACs gradually displacing parties and other organizations as a primary force in electoral politics.  This does not serve the interests of political equality.

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