These days, I probably spend more time speaking to reporters (from as far away as Brazil and Italy) about Super PACs than about any other election law subject. There is a lot of misinformation floating out there about what Super PACs are, where they came from, the relationship to Citizens United, and the ability of super PACs to coordinate with candidates without running afoul of the FEC disclosure rules. For those looking for basic information from what I’ve written, I point reporters to my recent CNN oped, this blog post on whether Citizens United created Super PACs, and this blog post which highlights the kinds of coordination which are currently permissible under FEC rules.
In light of the glut of news about yesterday’s FEC filings by Super PACs (many of whom did not exist or had not filed reports since June), I expect a new round of stories and questions about how Super PACs and related developments may be changing elections. I offer these three observations about what we now know.
1. Citizen United mattered in increasing spending, but by how much we don’t yet know. Right after Citizens United was decided, there was a great debate within the campaign finance world over whether the case would change campaign finance patterns. Some pointed to the fact that in the 2010 election, we saw barely any independent spending directly by corporations. My view had always been that most (for profit) corporations would not want to stick their necks out and risk alienating customers by putting their names on independent ads. For corporate money to really matter, there would have to be a way to filter it through committees and sometimes to hide the money entirely. Thanks to Super PACs and the transformation of 501c4’s, both of these are now possible and we are witnessing the corporate money coming in. See today’s must-read NYT report (“The filings also revealed how recent court decisions have opened new avenues for corporate contributions into campaign politics, and how narrow the gap has become between the candidates and the theoretically independent super PACs that are backing them. Four contributions of $250,000 to Mr. Romney’s super PAC came from affiliates of Melaleuca, an Idaho-based company that manufactures skin and nutritional products. The company’s president and chief executive, Frank VanderSloot, is a national finance co-chairman of the Romney campaign and a fellow graduate of Brigham Young University.”). We don’t know how much corporate money is coming in now (and as to 501c4s, because of lack of disclosure we likely will never have the full picture). But it seems a safe bet that there is lot more corporate money coming into the system than was (barely) allowed in the pre-Citizens United world. Further, by making legal what was of questionable legality (through 527s) before Citizens United, my sense is that there will be much more independent money from individuals through committees than we’ve ever seen in the past. I look forward to the work of political scientists to ferret out the independent (individual, corporate and union) money in this election compared to prior elections. We also need to figure out if there is more of an arms race going on, or if corporate money will now dominate–a topic I know Ray LaRaja and others are working on.
2. The Secret Money is Shifting to 501c4s, and It Demands a Legislative Response. Last night ace election lawyer Rob Kelner tweeted: “Biggest story today: Crossroads’ c4 raised more than its Super PAC. Confirming that media is missing the boat by focusing on Super PACs.” My big concern before yesterday was that we would see a lot of transfers of money from 501c4s to affiliated Super PACs to shield the identity of donors to Super PACs. I’m still trying to get a handle on how much of this took place (apparently less than I thought). But the reason these transfers are not taking place is that it appears the 501c4s are engaging in much more direct election-related activity than they have in the past. That is, we are seeing some 501c4s becoming pure election vehicles. The relation of 501c4s to super pacs is now like the past relation between 527s and pacs—these are now the vehicles of questionable legality to influence elections. While Adam Skaggs is rightly focused on fixing the coordination rules for Super PACs, this seems to be fighting yesterday’s war already. The key is to stop 501c4s from becoming shadow super PACs. Yes, campaign finance reform community, it has become this bad: I want more super PACs, because the 501c4 alternative is worse!
3. We don’t know yet how much Super PACs are affecting electoral outcomes and legislative outcomes. It is really easy for journalists to write stories about how one candidate (combined with his or her super pac) has vastly outspent opponents in a race and come out on top. The (sometimes) unspoken implication is that money is buying the outcomes. I’m skeptical of such claims: money gets you taken seriously in elections but usually doesn’t buy results. Case in point: the more CA gubernatorial candidate Meg Whitman spent on her election (from her considerable wealth), the worse she did. And as the Washington Post pointed out after Iowa, while it was true that Gingrich plummeted in Iowa after a pro-Romney super PAC ran ads attacking him there, Gingrich at the same time also fell nationally, where no ads were running. So anyone who thinks they know the relationship between super PAC spending and outcomes better be doing a pretty nuanced and sophisticated analysis. We also will need to watch after the election to see how super PAC spending (and the future threat of it) may be affecting legislative actions. As I concluded my CNN oped: “I am greatly concerned that when Election Day is over and the public will stop hearing about Super PACs, contributions to these groups will skew public policy away from the public interest and toward the interest of the new fat cats of campaign finance, as members of the House and Senate thank their friends and look over their shoulder at potential new enemies.