The fall before an election year is always a strange time. The candidates have been campaigning for months and the media are invested in wall-to-wall coverage, yet we are still a year from the general election and three months from the Iowa caucuses. The result is overblown coverage of the process of campaigns, emphasizing presidential-debate rules, the latest polling data, and the favorite hobbyhorse of liberal media outlets: money in campaigns.
This coverage is predictably alarmist, with talk of “floods,” “torrents,” even “tsunamis” of money dominating headlines, and editorial writers claiming that democracy is somehow about to vanish because people spend money on political advertisements.
Since the 2010 Supreme Court decision in Citizens United, this media jeremiad has focused its ire squarely on the “super PAC.”
What the Supreme Court actually did in Citizens United was to set forth a simple, straightforward, natural application of the First Amendment. Reiterating a longstanding decision, Buckley v. Valeo (1976), it held that the government cannot prevent unions and corporations from presenting their political views to the public. Citizens United was followed by SpeechNow v. FEC (a Court of Appeals decision that the Obama administration did not appeal to the Supreme Court), which held that individuals are also free to join together and pool their resources to express their political beliefs. Together, these cases gave birth to “independent expenditure committees,” or what are commonly called super PACs. These are groups that can independently purchase ads and voice their support or opposition to candidates regardless of whether the candidates, the media, or the government give them permission. No matter how much some people dislike the political ads that dominate our airwaves, the Court reasoned that under our First Amendment, it cannot be the government’s job to decide who should and should not be allowed to express political messages.
In 2012 super PACs accounted for approximately 12 percent of political spending. In 2014 the number was below 10 percent. So far in this cycle, super PACs account for about 20 percent of political funds raised. If this is a tsunami, it’s a small one.
But imagine a world without these so-called “outside” voices — so denounced by big media — spending money on politics: What messages would voters hear? Who would control the information needed for Americans to form political opinions? The media, of course! In fact, the complaining from media outlets about super PACs and the court decisions that enabled their existence is little more than a turf war over who gets to talk to voters, influence positions on issues, and tug at the levers of power in Washington. The fact that Super PACs are scorned as “outside spending” is telling. Outside of what? Super PACs are citizens speaking directly to other citizens; what they’re outside of is the traditional media/political power structure. It used to be that the New York Times and other big media had a near-stranglehold on political influence. In the age of super PACs, that is no longer so.
The fact that Super PACs are scorned as “outside spending” is telling. Outside of what? Super PACs are citizens speaking directly to other citizens
Justice Kennedy made exactly this point in a recent interview defending Citizens United: “Remember,” he told students at Harvard, “the government of the United States stood in front [of] our court and said it was lawful and necessary under the [McCain-Feingold campaign finance] Act to ban a book written about Hillary Clinton in the prohibited period. . . . That can’t be right. I wasn’t surprised the New York Times was incensed their little monopoly to affect our thinking was taken away. I was surprised how virulent their attitude was.”
That “virulent attitude” (embraced by a large swath of the media, not only the New York Times) has led to tedious hand-wringing about the minutiae of campaign-finance regulations, as the press tries desperately to prove that super PACs are “skirting the law” or outright breaking it. And with 376,000 words of government regulation (not to mention nearly 2,000 advisory opinions and 7,000 reported enforcement actions) governing political speech even after Citizens United and SpeechNow (as opposed to the First Amendment’s ten-word command: “Congress shall make no law . . . abridging the freedom of speech”), there are plenty of minutiae with which to work.
But these arguments over regulatory arcana — How much coordination is too much? Who can attend fundraisers? What can candidates say when meeting with supporters? When can they say it? — miss the larger point. It’s good for democracy when individuals can join together, pool their resources, and express their political opinions; it is good when political parties, candidates, and the institutional media are not the only ones speaking about elections; and it is bad when government restricts these “outside” speakers.
#share#Besides the media, the biggest critics of super PACs are often politicians themselves. They, too, often abhor “outside” speech. They want to control the terms of the debate and the issues that are discussed in the campaign, and they can’t control super PACs. For politicians such as Bernie Sanders, other benefits of blasting super PACs are obvious — they get good media coverage and gain votes. For some, the benefits of denouncing super PACs are less immediately obvious, but very real. For example, Donald Trump calls super PACs a “disaster.” But Trump gets much more free coverage than his competition, and he has a huge fund-raising advantage over his rivals for the GOP nomination: While his rivals must raise funds under a complicated regulatory system limiting individual contributions to just $2,700, Trump can simply write his campaign a check whenever he chooses. Super PACs, which can raise money in any amount, help to close the media/financial gap between Trump and other GOP candidates. If Super PACs are banned, Trump benefits.
Super PACs help to close the media/financial gap between Trump and other GOP candidates. If Super PACs are banned, Trump benefits.
To be sure, super PACs have a variety of agendas. Most exist to support ideologies, issues, and a broad array of like-minded candidates. But, like any successful innovation, super PACs have been adopted and copied by those very much in the mainstream — for example, Jeb Bush’s campaign is helped by a well-funded super PAC, and Hillary Clinton’s presidential bid is supported by at least three. It shouldn’t be surprising that supporters of Hillary Clinton would form super PACs to support her, or that a group supporting Jeb Bush would run ads similar to those of the Bush campaign. But since super PACs are required by law to disclose all expenditures and the identity of every donor who contributes over $200, voters are free to evaluate their virtue.
In a world that values free speech, super PACs should be a welcome part of the political landscape. Their ads promoting Jeb and Hillary will run alongside ads by Trump and Sanders, ads by the DNC and by the RNC, and ads by groups that want less government spending or more environmental regulation, such as End Spending Action Fund and Next Gen Climate Action. These snippets of paid political speech will run between news broadcasts featuring political stories with partisan tilts, and on talk shows where celebrities interview and endorse candidates.
All of these sources of influence and information, and countless others, are absorbed by voters, who reach their conclusions and cast their ballots as they see fit. When voters step into voting booths, the more information they have to inform their choices, the better.
Despite Citizens United and SpeechNow, campaign finance remains more heavily regulated than at any time before the 1970s. These 40 years of regulation have taught us that when regulators and the media push to “clean up” the campaign process or to make it fairer, the inevitable result is the restriction of speech and the thickening complexity of laws that should be simple enough for everyone to follow. Court decisions that strike down unnecessary restrictions on political speech should be celebrated, not vilified. If super PACs are not always pretty, they are a lot prettier than a federal government that dictates who can speak, and when, and how, about politics.
— Bradley A. Smith, former chair of the Federal Election Commission, chairs the Center for Competitive Politics. Scott Blackburn is a research fellow at the Center for Competitive Politics.