Fred Wertheimer is president of Democracy 21, a nonprofit organization that promotes campaign finance reform and transparency in government.
Here is the only good news about the super PACs flooding the 2012 presidential race with negative ads funded by huge contributions from the super rich: These vehicles for corruption can be eliminated.
Congress can pass legislation to end these candidate-specific super PACs that is well within the bounds of Citizens United.
The Supreme Court’s decision in the 2010 case Citizens United v. Federal Election Commission paved the way for the creation of super PACs — federally registered political action committees that raise unlimited contributions and use these funds to make expenditures in federal elections. To legally spend these funds, the court said, outside groups must operate independently of the candidates they are supporting.
The 2012 presidential campaign has brought us a particularly virulent form of these groups: the candidate-specific super PAC. If not made illegal, they will spread to congressional races as well.
These super PACs function as arms of the presidential campaigns. They are run by former close political associates of the candidate and raise and spend unlimited contributions to support only that candidate. Campaign aides and political associates of the candidate — sometimes the candidate himself — appear at events held to raise contributions for the super PAC.
It is clear to those giving six and seven figures to a super PAC that supports a presidential candidate, as well as to the candidate, that the contributions directly benefit that candidate just as if the contributions were being given directly to the candidate. Contributions to the candidate, however, are limited to $2,500 per election.
In essence, the presidential candidate-specific super PACs are vehicles for eviscerating the limits on contributions to federal candidates — limits that are an essential bulwark to preventing government corruption.
In upholding the constitutionality of limits on contributions to candidates, the Supreme Court said in the 1976 case Buckley v. Valeo that the limits were necessary to deal with the “reality or appearance of corruption inherent in a system permitting unlimited financial contributions.”
The inherently corrupt system envisioned by the court is precisely what our country faces with the advent of candidate-specific super PACs.
Well, super PACs can be made illegal.
While we cannot end all super PACs, as long as the Citizens United decision stands, we can eliminate the type of candidate-specific super PACs being used in the presidential campaign.
Democracy 21 has drafted legislation that would accomplish this goal.
The linchpin of the Citizen United decision is the requirement that expenditures by an outside group, such as a super PAC, must be made independently from the candidate the group supports. The court left it to Congress to define what constitutes illegal “coordination.”
Previously, the Supreme Court has spoken in broad terms about what constitutes an “independent” expenditure. It has said that such expenditures must be made “totally independently” (Buckley v. Valeo). They must be “wholly independent” (McConnell v. FEC). They must be “truly” independent (McConnell v. FEC) and must be made “without any candidate’s approval (or wink or nod)” (FEC v. Colorado Republican Federal Campaign Committee).
The Federal Election Campaign Act speaks in similarly broad terms in stating that expenditures by an outside entity cannot be made “in concert or cooperation with or at the request or suggestion of such candidate, the candidate’s authorized political committee or their agents.” The FEC, however, has continually failed to properly interpret and enforce the law, which has left those running super PACs believing they are free to function as arms of their candidate’s campaign.
The candidate-specific super PACs in this year’s presidential contest have common characteristics that closely tie them to the candidates they support:
● they are informally, if not formally, established, suggested, encouraged or signed off on by the presidential candidate or his agents;
● they are created or run by former close political associates of the candidate and spend their money to support that candidate;
● they share fundraising lists and/or fundraisers in soliciting unlimited contributions from donors;
● the candidates or their agents make appearances at or otherwise participate in their fundraising and other events;
● and they discuss campaign strategy, projects, plans, needs, activities or expenditures with the candidate or his agents.
In real-world terms, each of these characteristics constitutes “coordination” between the super PAC and the candidate’s campaign.
These indications of coordination can and should be incorporated into a new statutory definition of coordination that denotes the presence of any such behavior establishes illegal coordination between the super PAC and the candidate.
Candidate-specific super PACs are returning this nation to the system of legalized bribery of federal officeholders that existed before the Watergate scandals. Congress can prevent this from happening, provided members have the will to do so.