US Politics Opinion: PACs, SuperPACs, and the Best Elections Money Can Buy

If you ask most British voters what they think of the amount spent by Americans on their elections, you might draw an initial blank --- it is not the hottest topic for discussion. However, if you provided examples of the many millions of dollars spread for the vote, the reaction would likely be shock and horror.

I would disagree. Whilst the majority of funds are spent on media advertising, primarily on television, substantial sums are spent locally on offices, hotels, and meeting space. Local vendors benefit from selling food and drink.  Local manufacturers wprint T shirts, campaign buttons, and other keep-sakes. An election year is an opportunity for communities the length and breadth of America to improve their economies.

However, beyond that boost, campaign funding is fast becoming a cancer in the American political system, with politicians unwilling to treat it.

The problem lies in the distinction made between “hard” and “soft” money. The former is regulated by the federal government; the latter is not. And there is no recourse to the Supreme Court:  in 1976, it ruled in Buckley v Valeo that spending limits on elections violated the First Amendment’s freedom of speech clause: “Restricting spending reduces the quantity of expression…because every means of communication requires expenditure of money.” 

The Valeo decision was followed by an advisory opinion by the Federal Elections Commission that soft money, raised above and beyond the limits of federal law, was permitted  --- if it was used to cover the non-federal portion of general campaign activities of the national parties. This meant that, through use of Political Action Committees (“PACs”), money could be raised not only to defray costs of administration; unregulated money could also be used for advocacy. 

Since 1979, Congress has debated campaign finance reform on many occasions, while soft money became a major component of national election finance.  According to political expert Anthony Corrado, soft money receipts increased from $86 million in 1992 to $260 million in 1996 and more than $487 million in 2000.

In 1996, at a town meeting in Claremont, New Hampshire, attended by both President Clinton and Speaker of the House Newt Gingrich, a question was asked about reform of campaign finance. Gingrich proposed a "blue ribbon commission", which Clinton accepted “in a heartbeat”. The two men shook hands. And nothing happened. Both men anticipated receipt of substantial soft money sums towards their 1996 campaigns, so both had little interest in reforming the laws which might help them retain power.

In 2001 Senator John McCain, with colleagues Russ Feingold and Thad Cochran, advocated substantial reform of the campaign finance laws: “American people are unanimous. They want their government back. We can do this by ridding politics of large, unregulated contributions”. Congress passed the Bipartisan Campaign Reform Act.

Seven years later, McCain ran a coach and horses through his own legislation when he accepted millions in soft money in support of his run for the Presidency. Barack Obama also turned down an opportunity, offered to both presidential candidate, of limiting funding to hard money. In the 2012 election, his stance will not change.

The 2010 mid-term election marked the rise of new political committees, dubbed the "Super PACs". They are officially known as "independent-expenditure only committees", raising unlimited sums from corporations, unions, and other groups, as well as individuals.

The Super PACs were made possible by two judicial decisions. First, the US Supreme Court held in Citizens United v. Federal Election Commission that the government may not prohibit unions and corporations from independent expenditure for political purposes. Second, in Speechnow.org v. FEC, the Federal Court of Appeals held that contributions to groups that only make independent expenditures could not be limited.

Super PACs are not allowed to coordinate directly with candidates or political parties; however, candidate may "talk to" his associated Super PAC via the media. Meanwhile, the Super PAC openly supports the candidate, typically by financing negative advertisements. 

This year, when Newt Gingrich was amost down-and-out after the Iowa caucus and the New Hampshire primary, he was rescued by a $15 million donation from one Super PAC. In 2011, one Super PAC supporting President Barack Obama raised $4.4 million, but on 14 March, The New York Times reported that the Obama campaign was concerned thatit was not raising sufficient sums to fight later this year. The oil-millionaire Koch brothers have promised to raise $200 million  to support the Republican campaign in the fall.

The fundamental tension affecting the campaign finance debate can be traced to the Declaration of Independence, which speaks of inalienable rights to both freedom and equality. The Founding Fathers recognised the tension. As James Madison wrote of “methods of removing the causes of faction” and “the impracticability of seeking to prevent differing opinions”, he noted that “government is open to merit….without regard to poverty or wealth”.

In her essay “Only Words”, Catharine Mackinnon wrote of equality and the law of freedom of speech being on a collision course, where “free speech protections have developed worldwide without taking seriously the problems of social inequality or the needs for substantive equality". She argues that the power of those who have speech has become more exclusive and coercive, whilst equal protection is eclipsed by that supposed "freedom".

Some argue that the amount spent on federal elections is “so large it has become a vicious habit that Congressmen must break” and that it corrupts because “donors typically expect to receive something in return”. Charles Lewis, former head of the Centre for Public Integrity said: “It [campaign finance] is more corrupt, insidious and subtle than the pre-Watergate system”. Putting it bluntly, is it reasonable to believe that those paying vast sums of money to a political campaign will want nothing in return from their candidate if he wins?

Corruption is not the sole issue to be considered. There is evidence that non-voting does not stem from a rejection of the process but a lack of interest in it. That lack of interest may only be reinforced by the negative advertising, accompanied by saturation tactics employed by those candidates who have sufficient funds.

Years ago, an American friend told me that the US had the best police forces that money could buy. He did not appreciate the irony in his statement. I wonder if he would do so, if the statement was applied to politicians and "freedom of speech".