Misguided Efforts Gave Us the Pretense of Independent Campaign Spending

Jacob Sullum
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Posted: Jan 18, 2012 12:01 AM

Winning Our Future, a "super PAC" that supports Newt Gingrich's bid for the Republican presidential nomination, is spending more than $1.2 million on ads in South Carolina, which holds its primary on Saturday. That fact requires some explanation.

First, why would anyone want Newt Gingrich to be president? Second, what is a super PAC? While the former question remains a mystery, the answer to the latter reveals how the vain crusade to curb the influence of money on elections has made talking about politics needlessly cumbersome and complicated.

Unlike conventional political action committees, which give money to campaigns and must obey limits on the contributions they receive, super PACs spend money on their own ads and can receive unlimited contributions, including money from unions and corporations. They exist thanks to Citizens United v. FEC, the 2010 ruling in which the Supreme Court lifted restrictions on political speech by unions and corporations, plus subsequent decisions by the U.S. Court of Appeals for the D.C. Circuit and the Federal Election Commission.

Those decisions were based on the same logic as Buckley v. Valeo, the 1974 case in which the Supreme Court overturned the Federal Election Campaign Act's spending limits. "Because virtually every means of communicating ideas in today's mass society requires the expenditure of money," the Court observed, restricting spending amounts to restricting speech.

At the same time, the Court upheld caps on campaign contributions (currently $2,500 per candidate for individuals, $5,000 for PACs), reasoning that the expressive value of such donations does not hinge on the amount involved and that allowing unlimited giving would invite "improper influence."

The distinction between spending and contributions was always dubious, since the former requires the latter except for candidates who are wealthy enough to finance their own campaigns. It is even shakier now that groups like Winning Our Future and Restore Our Future (which favors Mitt Romney) are run by candidates' former staffers and financed by familiar supporters.

The New York Times claims casino magnate Sheldon Adelson's $5 million donation to Winning Our Future "underscores how the 2010 landmark Supreme Court ruling on campaign finance has made it possible for a wealthy individual to influence an election." But wealthy individuals, like wealthy candidates, have always been free to spend as much of their own money on political ads as they please.

More plausibly, critics worry that super PACs encourage reckless mudslinging because candidates benefit from the groups' attacks on their rivals but do not have to take responsibility for them. When challenged about the accuracy of independent advertising supporting them, politicians can always say, as Romney did during Sunday's pre-primary debate, "that's something which is completely out of the control of candidates," who are legally barred from "coordinating" with super PACs.

But as Romney observed, "this strange situation" was produced by campaign finance regulations. Why not "let people make contributions they want to make to campaigns," he suggested, "and let campaigns then take responsibility for their own words"?

A good question. Critics of super PACs argue that they pose essentially the same risk of corruption as unlimited campaign contributions would, since politicians are apt to be grateful to people who help them win elections. Why not do away with the pretense?

Like prostitutes who masquerade as masseuses or head shop owners who insist their fancy water pipes are intended for use only with legal herbs, super PACs have a shady reputation because of misguided prohibitions. The limits imposed by the Federal Election Campaign Act gave rise to "issue ads," which provoked the ban on "electioneering communications" that was overturned in Citizens United; now super PACs are yet another means of getting around contribution caps.

"Improper influence" is a perennial hazard in politics. It can be kept in check by monitoring the favors that elected officials do for their supporters -- and, more important, by limiting their power to dispense favors. But it cannot be regulated away by increasingly creative restrictions on speech.