I have written this Jurisprudence essay for Slate. It begins:
Soft money is coming back to national politics, and in a big way. And we can blame it all on a single sentence in Justice Anthony Kennedy’s opinion in 2010’s controversial Citizens United decision—a sentence that was unnecessary to resolve the case.
In this election cycle, “superPACs” will likely replace political parties as a conduit for large, often secret contributions, allowing an end run around the $2,400 individual contribution limit and the bar on corporate and labor contributions to federal candidates.
Another snippet:
Now comes the most audacious argument in this series so far. If all PACs are Super-PACs, then the rules for these PACs should also apply to “leadership PACs.” Leadership PACs are political committees that sitting members of Congress (and others) set up to allow them to make contributions to other candidates and spend money to support their election. It is a way for a member of Congress to build influence.
Sen. Mike Lee’s Leadership PAC, the Constitutional Conservatives Fund PAC, has just asked the Federal Election Commission for permission to collect unlimited contributions from corporations, labor unions, and wealthy individuals for independent spending to elect other candidates. The SuperPAC’s lawyers argue that there’s no danger of corrupting these other candidates, because its spending to help them get elected will be independent of those candidates.
Even if we suspend disbelief and agree on this point, the request ignores the greater danger: that the leader of the leadership PAC will become, or appear, corrupt. Corporations or labor unions (acting through other organizations to shield their identity from public view) could give unlimited sums to an elected official’s leadership PAC, which could then be used for the official to yield influence with others.
There’s nothing to stop someone like Senate Minority Leader Mitch McConnell from effectively becoming the fundraising arm of the Republican Party, funneling all the money through his leadership PAC. The McCain-Feingold law barred political parties from collecting such unlimited “soft money” contributions, and the Supreme Court in 2003 upheld that limit on the grounds that such unlimited fundraising by politicians could corrupt politicians or create the appearance of corruption.