Super PACs: Gobbling Up Democracy?

In a Q&A with the Orlando Sentinel, Brennan Center Counsel Brent Ferguson explains how Super PACs and their mega-rich donors threaten democracy.

June 23, 2015

Cross-posted on The Orlando Sentinel

"A sense of dread" is how the Pittsburgh Post-Gazette prefaced the 2016 presidential campaign. Not only for flawed candidates, but because of their reliance on super political-action committees.

Not everyone agrees. Super PACs, they say, shrink candidates' fundraising time and boost face time with voters. But Brent Ferguson, counsel in the Democracy Program at the Brennan Center for Justice at NYU law school, says pols' coziness with super PACs and their mega-dollars harm democracy. He discussed super PACs in the following email interview. 

Q:  It seems most of the major presidential candidates have super PACs associated with their campaigns. How do they work?

A: Super PACs are political groups that can raise and spend unlimited amounts of money, but are required to operate separately from candidates. They are often funded by wealthy individuals and corporations. The Supreme Court's 2010 Citizens United case made super PACs legal, and they have become steadily more prominent in every election since then. This year they are likely to play an unprecedented role.\

Q: Candidates aren't supposed to control their super PACs; how are they circumventing that restriction?

A: They're doing it in several ways. Many surmise that several candidates delayed announcing their presidential candidacies so they could work directly with super PACs. But candidates also raise money for their super PACs, (which they are legally allowed to do, though they may not ask for more than $5,000, unlike those who are not yet candidates), and candidates' top aides are now leaving campaign teams to work for supportive super PACs. Some of these activities could violate current law, while others are permitted; the combination of weak laws and virtually no enforcement means in this election cycle, almost anything goes. If a candidate raises money for a certain super PAC and sends top staffers to work for it, that is a clear signal to donors that the candidate supports the PAC's spending, and may reward super PAC donors in the same way as campaign contributors.

Q: Should Americans be uneasy about super PACs?

A: Super PACs spend millions to help get their candidates elected; when a candidate wins thanks to that support, the super PAC and its funders are likely to have more access and influence over government policy than the other 99.9 percent of citizens. When super PACs are as close to candidates as they've been so far this election cycle, the Supreme Court's reasoning in Citizens United that "independent" spending can't corrupt doesn't even apply: giving money to a candidate's favored super PAC is essentially the same as giving it straight to the candidate, and all of the concerns we have about the corrupting influence of giving huge checks directly to candidates apply as well.

Q: What can be done to reduce the clout of super PACs and any other fundraising entities outside traditional campaigns?

A: Long term, we must work to overturn Citizens United and other decisions holding that corporations and individuals have a right to spend unlimited amounts on elections. Until that happens, we need stronger laws and better enforcement of laws that exist, as well as programs that amplify the voices of small donors, like public financing. New laws need to prevent candidates from fundraising for super PACs or appearing at their events, and should prevent a candidate's staffers from working for a super PAC during the same election cycle they've worked for a candidate. And we need a functioning enforcement body rather than the hapless Federal Election Commission. Several states and cities, like California and Connecticut, already have strong laws and enforcement in this area, demonstrating that common-sense reforms are possible. And places like New York City have robust public financing programs that ensure candidates can run successful campaigns without relying on super PACs or wealthy contributors.

Q: Wouldn't slapping new restrictions on political spending unconstitutionally restrict free speech?

A: No. The Supreme Court has repeatedly held that contributions to candidates may be limited. It has also recognized that if an outside group is connected to a candidate, contributions to that group are essentially contributions to the candidate, and therefore may be limited as well. Even under the court's cramped view of the First Amendment, pragmatic laws preventing coordination are permissible.

Q: Wouldn't restrictions give the advantage to incumbent politicians?

A: Not at all. First, incumbents almost always have a fundraising advantage, so it's incorrect to assume that cutting off the money flow would help them win. Second, adopting proper rules to separate super PACs and candidates does not limit spending — challengers could still get millions of dollars of support through truly independent groups. Perhaps most importantly, incumbents are more likely to be experienced political operators that will know how to best use super PACs to their advantage without risking punishment. Quality rules and enforcement that keep super PACs and candidates separate will make sure that incumbents cannot gain an advantage by exploiting a legal gray area.

Q: Even without limits, Americans spend more on video games than they do on campaigns. So why is spending a problem?

A: Reform opponents often compare the amount spent on elections to amounts spent on common purchases, but that argument only obscures the real issue. The problem is not the amount of money spent, but what the money buys and who can afford to play a meaningful role in the process — everyday citizens, or only a few wealthy people. The billions spent on video games do not mean that most Americans are shut out of the video game market, but the billions spent on elections do shut many out of the political marketplace. Wealthy individuals and corporations wield astonishing influence over elected officials because it takes at least a five-figure check get on a candidate's radar. If every American gave just $100 to a federal candidate, the election would cost over $30 billion, but that state of affairs would be much better than the one we have today, because candidates wouldn't owe favors to the wealthy few that supported their campaigns or super PACs.

(Photo: Thinkstock)