Super PACs: The WMDs of Campaign Finance
Senior Fellow, Belfer Center for Science and International Affairs, Harvard Kennedy School
A longer version of this article first appeared on TheAtlantic.com on January 6, 2012.
Super PACs can receive unlimited contributions and make unlimited campaign expenditures for or against a candidate, often with actual donors hidden from view. This election year will see an exponential growth in their number and in the funds available to them.
Partisans from left and right will use them. No reforms to limit them will occur. And there is a looming war of attrition as the negative, superficial cannonading of Super PACs in political ads threatens to obliterate any semblance of a policy debate.
Exhibit A (we will likely run the alphabet this year) is Restore Our Future, the Super PAC organized by the political director of Mitt Romney’s 2008 campaign and supposedly “independent” of the Romney campaign itself. On November 30, 2011, Newt Gingrich led Mitt Romney in Iowa by a 14 percentage point margin (31 percent to 17 percent), per a New York Times/CBS poll. In the next 30 days, Restore Our Future spent more than $3 million on negative, anti-Gingrich ads — twice the amount spent by the Romney campaign itself. The final result: Romney in first (barely) with 25 percent of the vote, Gingrich in fourth, with 13 percent of the vote.
Super PACs are, of course, the progeny of the Supreme Court’s January, 2010 decision in Citizens United, which declared unconstitutional the legislative provisions that had prohibited corporations and unions from their organizational treasuries to pay for ads, even if those ads were made independently of a candidate’s campaign.
Now, so long as the Super PACs are “independent” of a politician’s own efforts, they can raise and expend unlimited funds either for a) “independent expenditures” that support or oppose a particular candidate or b) “electioneering communications” that may mention the candidate favorably or unfavorably in a discussion of campaign issues, but which do not expressly advocate election or defeat.
Moreover, many of the Super PACs’ real donors will not be disclosed. Super PACs themselves, which are organized under federal election laws, must register with the Federal Election Commission (FEC) and disclose contributors. But many Super PAC donors will be tax-exempt “social welfare organizations” or trade associations or “issue organizations” organized under the Internal Revenue Code — the so-called 501(c)(4), 50l(c)(6), or 527 entities. And, under long-standing IRS rules, such tax-exempt organizations are not required to disclose their corporate or individual donors, who will thus not be listed in Super PAC reports filed with the FEC.
In 2010, 80 Super PACs registered with the FEC. In this election cycle, more than 250 Super PACs have already registered. This includes a pro-Obama Super PAC (Priorities USA Action), a behind-the-curve pro-Gingrich one (Winning Our Future), a number organized by prominent Republicans like Karl Rove in a reprise of 2010 (e.g. American Crossroads), and even one promoted by Stephen Colbert (Americans for a Better Tomorrow, Tomorrow). Super PACs spent $90 million in 2010. The amounts they spend this year will be many multiples of that ($32 million has already been raised, and the war has barely begun).
For conservative critics of campaign finance regulation, Super PACs are an excellent development (just as Citizens United was rightly decided), allowing money from all points on the political spectrum to be aggregated and spent “independently” for or
against candidates. To them, the “marketplace of ideas” is now well-funded and even more robust.
For critics of Citizens United and the large amounts of “independent” money flowing into tax-exempt entities and Super PACs, this marketplace is seriously flawed. But there are no solutions on the horizon for the problems the new PACs present, which include lack of disclosure, corruption, the fiction of independence, unequal access to financing, and gross distortions. (See my original article on TheAtlantic.com for a detailed analysis of each of these problems).
The rise of the Super PACs will be one of the most important developments of this electoral season. At a time when our major national problems — budget, economy, defense posture, energy, environment — demand bipartisan solutions and bipartisan assignment of public and private roles, the Super PACs are yet another hammer blow to our broken political culture. They are far more likely to push the parties to further extremes than usher in an era when moderates from both sides of the aisle can work together for the commonweal. Political Darwinism shall reign.
Ben Heineman is a senior fellow in the Belfer Center for Science and International Affairs at Harvard Kennedy School and a senior fellow at Harvard Law School’s Programs on Corporate Governance and the Legal Profession. He was GE’s Senior Vice President for Law and Public Affairs. He writes and lectures on globalization, corporate citizenship, the anti-corruption movement, corporate ethics, professional services and public policy.