The su­per PAC min­uet

The Washington Post Sunday - - SUNDAY OPINION - georgewill@wash­

Cam­paign fi­nance “re­form­ers” think the United States would be bet­ter gov­erned if the gov­ern­ment could thor­oughly reg­u­late cam­paign speech, which is speech about the com­po­si­tion and com­port­ment of the gov­ern­ment. Re­form­ers scold the Supreme Court for con­stru­ing the First Amend­ment as though it says “Congress shall make no law . . . abridg­ing the free­dom of speech.” Re­form­ers say gov­ern­ment can limit cam­paign money with­out lim­it­ing what most of such money funds — po­lit­i­cal speech. And since the Supreme Court’s 2010

Cit­i­zens United de­ci­sion, re­form­ers have been lament­ing a pre­dictable con­se­quence of their suc­cess in im­pos­ing lim­its on con­tri­bu­tions to can­di­dates and cam­paigns.

The con­se­quence is the rise of su­per PACs ded­i­cated to the sup­port of sin­gle can­di­dates. So now, re­form­ers in­sist that su­per PACs’ spend­ing is not re­ally “in­de­pen­dent” be­cause it is, in ef­fect, “co­or­di­nated.” Well.

Since 1976, the court has held that the only le­git­i­mate pur­pose for lim­its on po­lit­i­cal con­tri­bu­tions is to pre­vent quid pro quo cor­rup­tion or the ap­pear­ance thereof. Cit­i­zens United left undis­turbed the 1907 pro­scrip­tion on cor­po­rate con­tri­bu­tions to can­di­dates’ cam­paigns. The case said only, and un­re­mark­ably, that cit­i­zens do not for­feit their First Amend­ment rights when they come to­gether in cor­po­ra­tions — usu­ally non­profit cor­po­ra­tions, e.g., the Sierra Club, the NAACP, Planned Par­ent­hood — for the shared pur­pose of ad­vo­cacy in­de­pen­dent of (not co­or­di­nated with) any can­di­date’s cam­paign. The court said that in­de­pen­dent ad­vo­cacy ex­pen­di­tures “do not give rise to” cor­rup­tion or its ap­pear­ance.

Two months later, the na­tion’s sec­ond­most im­por­tant court, the U.S. Court of Ap­peals for the D.C. Cir­cuit, ruled unan­i­mously against Fed­eral Elec­tion Com­mis­sion lim­its on the size of con­tri­bu­tions to in­de­pen­dent ad­vo­cacy com­mit­tees, in­clud­ing sin­gle-can­di­date su­per PACs that make no con­tri­bu­tions to cam­paigns and op­er­ate in­de­pen­dent of can­di­dates and par­ties.

Su­per PACs are the re­sult of th­ese

de­ci­sions — and of the re­form­ers’ suc­cess in lim­it­ing giv­ing to par­ties and can­di­dates. Re­form­ers, who think “in­de­pen­dent” should be a syn­onym for “dis­in­ter­ested,” are ap­palled by su­per PACs work­ing to fa­cil­i­tate the elec­tion of par­tic­u­lar can­di­dates. The Supreme Court, how­ever, has held that lim­its on the amount an in­di­vid­ual can con­trib­ute to a can­di­date or cam­paign or­ga­ni­za­tion are mi­nor re­stric­tions on a per­son’s po­lit­i­cal ex­pres­sion be­cause the per­son can spend else­where “to dis­cuss can­di­dates and is­sues” through in­de­pen­dent ex­pen­di­tures.

Thus for­mer FEC chair­man Bradley Smith, in “Su­per PACs and the Role of ‘Co­or­di­na­tion’ in Cam­paign Fi­nance Law” ( Wil­lamette Law Re­view, sum­mer 2013), notes that “with­out the es­cape valve of in­de­pen­dent ex­pen­di­tures, con­tri­bu­tion lim­its would con­sti­tute a much greater in­fringe­ment on speech.” The court’s fo­cus on quid pro quo cor­rup­tion clearly demon­strates, Smith says, that the court is not al­low­ing lim­i­ta­tions on speech. Rather, it is sanc­tion­ing “reg­u­la­tion of a par­tic­u­lar type of con­duct — the overt ex­change of cam­paign con­tri­bu­tions for leg­isla­tive fa­vors that may not ex­tend to the level of bribery.”

The court has con­sis­tently held that reg­u­la­tion of cam­paign fi­nanc­ing is con­sti­tu­tional when it reg­u­lates con­duct rather than speech. The court has im­plic­itly re­jected, as a rea­son for reg­u­lat­ing con­tri­bu­tions to in­de­pen­dent groups, the sup­po­si­tion that large dona­tions dis­tort the po­lit­i­cal process. It has ex­plic­itly said that it “is wholly for­eign to the First Amend­ment” for gov­ern­ment to “re­strict the speech of some el­e­ments of our so­ci­ety in or­der to en­hance the rel­a­tive voice of oth­ers.”

While re­ject­ing di­rect lim­its on speech, the court al­lows lim­its on con­tacts be­tween speak­ers (con­trib­u­tors) and can­di­dates or their cam­paigns. But as Smith writes, con­tacts will be un­nec­es­sary:

“Of course su­per PACs will be started and run by friends, as­so­ciates and for­mer staffers of can­di­dates; of course they will be funded by sup­port­ers, who are likely to have also do­nated to the cam­paign . . . ; of

course su­per PACs will at­tempt to har­mo­nize their strat­egy with that of their fa­vored can­di­dates, for max­i­mum ef­fect.”

Ca­sual ob­servers of pol­i­tics, in­clud­ing most vot­ers, are un­der­stand­ably puz­zled by the process of con­tribut­ing to su­per PACs in­de­pen­dent of (not “co­or­di­nated with”) the can­di­dates the su­per PACs are cre­ated to help. Per­haps this prompts cyn­i­cism among vot­ers who see soon-tobe pres­i­den­tial can­di­dates feign in­de­ci­sion about run­ning while they so­licit large con­tri­bu­tions to their su­per PACs. Vot­ers might won­der: Why have this mis­lead­ing min­uet?

Smith’s an­swer is that “anti-co­or­di­na­tion” rules are re­quired if lim­its on con­tri­bu­tions to can­di­dates are to have even to­day’s min­i­mal ef­fects. The lim­its the re­form­ers hoped would de­crease cyn­i­cism about pol­i­tics are in­creas­ing it, which is just an­other un­pleas­ant sur­prise for re­form­ers who are re­peat­edly sur­prised by their own con­se­quences. Some­day even they might un­der­stand the wis­dom of choos­ing what the Con­sti­tu­tion, prop­erly con­strued, ac­tu­ally re­quires: un­reg­u­lated pol­i­tics.

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