Super PACS

In 1964, when I first became involved in election politics, there were no laws or rules regulating the amount that individuals could contribute to Federal candidates or spend themselves on such campaigns. Cash was often the financial support or contribution mechanism of choice.

Corporations were prohibited from playing in campaigns by the Tillman Act of 1907. And, while corporations might push the edge a bit in terms of providing “help” to campaigns without direct expenditure, they were basically not in the game.

In 1971 the Federal Election Campaign Act was enacted. It was basically a disclosure law and took effect in April 1971. I was running a U.S. Senate re- election campaign at the time.

Over time the 1971 Act was extended to limitations on the amounts that individuals might contribute to individual candidates, political action committees, and Party organizations. The prohibitions of the Tillman Act have been incorporated in the Federal Election Campaign Act.

There were, and still are, mechanisms such as 527s and 501(c)(4)s that can do various forms of issue-advertising, which might, in fact, affect campaigns, but no specific connection could be made to a particular candidate. Periodically, some of these groups would spend large amounts of money. An organization called “Swift Boat Veterans” operated in the 2004 Presidential campaign in opposition to John Kerry’s candidacy. Some observers think it had an outsized impact on Kerry’s ultimate loss in that election . Others think Kerry’s loss can be attributed to the fact that he stuck with Federal general election financing.

Then, in 2010, the U.S. Supreme Court, in a 5-4 decision, decided in all its wisdom that limitations on independent expenditures by corporations and labor unions were unconstitutional. From that decision a new campaign finance organization came into being, the so-called Super PACs. These are political action committees that can accept unlimited contributions from individuals, corporations, and labor unions. The groups must file with the Federal Election Commission, and the donors to these PACs are disclosed on a periodic basis. The limit on these groups is that their activity, which can be candidate-specific, must be conducted “independently” of any candidate, i.e., coordination with campaigns is prohibited.

One or more of the Super PACs was active in the 2010 Congressional elections.

The value of these new organizations is currently evident in the attacks leveled against Newt Gingrich in the Republican nomination fight by a Super PAC supporting Mitt Romney. Arguably, its work was the primary cause of the nose dive Gingrich took in the Iowa caucuses.

Now, the Newt Gingrich-supporting Super PAC is setting out to trash Mitt Romney in South Carolina.

The important role that these organizations are likely to have in the coming general election is demonstrated by the reversal of position taken by President Obama as he prepares for his re-election campaign. During the 2008 campaign, Obama asked that no independent organization be created in support of his campaign. One such organization that was in the process of getting started was terminated. (The President was also the first candidate for President who did not take the Federal general election finance grant, effectively neutering that mechanism for limiting the amounts of money spent on the general election campaign. )

Now, two folks who spent a couple of years on the White House staff have created such an organization designed to be active in the coming campaign. There has been no outcry from the White House, and it has to be assumed that the two individuals involved would not have taken this action if they did not think that the Obama position has changed.

To be sure, setting up one or more Super PACs in support of the President makes good sense. While it is assumed that the President will be able to raise record-breaking amounts through the Presidential campaign committee, it must be assumed that numerous Super PACS will spend unlimited amounts of money working for his defeat.

It should not be assumed that the prohibition against coordination between the relevant campaign and a Super PAC is any obstacle to a SuperPAC operating in a way that is 99% effective in support or opposition to a candidate.

There has been some consternation about the fact that it can take some time after a particular election activity, like a primary, before there is disclosure of the donors to these Super PACs. The reality is that information about the donors is essentially irrelevant. In this era of ubiquitous electronic communication, donor information never catches up with campaign-related information, and even if it does, the campaign-relevant information still has impact.

The era of the SuperPAC has, for all practical purposes, eliminated any limitations on campaign spending.

Some express concern that this change represents the “end of Democracy as we know it.” Well, time will tell. However, we should remain mindful that from the time of the election of the first President of the United States in 1789 and the late 1970s, democracy and the election of Presidents worked just fine without the limitations of the Federal Election Campaign Act.

[Note: Apparently Citizens United did not go far enough for those who want to eliminate all regulation of campaign finance. There are three cases proceeding through the Federal courts that would further knock out remaining limitations. In one case that has drawn particular attention, US v. Danielczyk, currently on appeal to the 4th Circuit, a District Court judge struck down the ban on direct corporate contributions to candidates. ]

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The increasing amounts of money involved in campaigns gives some people a severe heartburn. My experience over the last 47 years, mostly on the operating ,and to a lesser extent the fundraising, aspect of campaigns, is that it is overrated as a problem.

Of course money is very useful in campaigns, and the easier it is to gain access to necessary funds, the more time candidates have to engage with voters and the other work of position development, etc.

Evidence that the availability of large amounts of money is not the beginning and end-all of success in electioneering can be found in the current contest for the Republican nomination for President.

Rick Santorum has had very little money, yet he essentially tied for first in Iowa, and while he faded in New Hampshire, he has a fulsome campaign going in South Carolina. His early success has resulted in a flow of contributions to his campaign, but not an extraordinary amount.

Newt Gingrich complains that his campaign was sidetracked by the amounts of money that a pro-Romney SuperPAC spent against him in Iowa. However, his star was fading across the country, which suggests that his bigger problem was free media starting to raise questions about his career.

Rick Perry has spent large amounts of the money available to him, yet his campaign has not taken off. His problem turned out to be his poor performance in debates and some of the policy positions which he put forth.

Ron Paul has had large amounts of money available to him and has done quite well, but he has no chance of actually getting the Republican nomination. However, he may be successfully building a movement.

The long and the short of it is, money helps, but if that is a candidate’s primary tool, success is not likely.

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