Legislating In the Super Pac Era

The power of Super PACs is one of the reasons for Trump’s thin legislative record.

April 26, 2017

The views expressed are the author's own and not necessarily those of the Brennan Center for Justice.

Donald Trump races toward the 100-day mark — so beloved by pundits and Napoleonic scholars — with a legislative record as parched as the Dust Bowl. Unless the latest version of Trumpcare undergoes a resurrection worthy of the New Testament or the Republican Congress passes Trump's new tax plan within hours, the president can point to nothing more than over-hyped executive orders and Mitch McConnell's successful scorched-earth campaign to confirm Neil Gorsuch.

It is easy to attribute this failure to Trump's disdain for substance, his weather-vane attention span and a White House so riven with factions that it makes the Hatfields and the McCoys seem like a buddy movie. Congressional Republicans have also contributed to the legislative chaos by failing to grasp that governing requires an actual health-care plan rather than endlessly recycled talking points about "repeal and replace."

But there is another factor that helps explain the inability of a Republican president blessed with a Republican Congress to rack up any legislative victories. What few have noticed is that Trump is the first president trying to legislate since the dawn of the Super PAC era.

The Supreme Court decided Citizens United in January 2010, but the full implications of the anything-goes era of campaign spending did not emerge until after that year's congressional elections. It is hard to blame Super PACs for the Democrats' woeful performance in the first off-year election of Barack Obama's presidency.

Beginning in 2011, Obama spent his next six years in the White House grasping for crumbs as he tried to govern in the face of hostile GOP majorities in Congress. Instead of ambitious policy goals, Obama was reduced to begging the Republicans not to shut down the government and default on the national debt.

During the Obama years, it was easy for GOP Super PACs to follow the same playbook since it contained only a single page with the word "NO" written in oversized letters. Why would any conservative Super PAC baron dissent when the Republican Congress was voting to repeal the Affordable Care Act certain that Obama would veto the symbolic legislation?

But everything changed once a Republican was elected president. Suddenly, health-care legislation moved from the realm of the fanciful to the real. And that's when right-wing Super PACs began feuding over what to do next.

The true ramifications of the Super PAC era kicked in on March 22 when the Koch Brothers and their allies announced that they were starting a campaign fund to bankroll House Republicans who opposed the initial Trump-Paul Ryan health-care bill. The guarantee of Super PAC support in 2018 played a significant role in the resistance of the right-wing Freedom Caucus to vote for the legislation that was pulled at the last minute from the House floor.

Before Super PACs, a president working in tandem with the House speaker could usually bludgeon recalcitrant members of their party into submission by threatening to cut off their campaign funding. Even legislators with safe districts would have to worry about a deep-pocketed primary challenger. Money, in short, was a powerful weapon in enforcing party discipline. 

But now a balky legislator backed by a Super PAC billionaire or two can write his or her own Declaration of Independence. What this means is that a president, even with a majority in Congress, probably needs unanimity among his party's Super PACs to pass major legislation.

This, to be sure, is different from traditional interest group politics. A prior legislative battle might have pitted the aerospace industry against the banking lobby. But before Super PACs, the amount of campaign money that any industry or lobbying group could put on the table was usually insufficient to decide an election. Now a singe Super PAC billionaire can tilt the playing field without consulting anyone else.

This doesn't mean that the Republicans will always be stymied in their efforts to legislate. But the victories will probably involve low-hanging fruit, such as a corporate tax cut paid for with...well...nothing. More ambitious tax reform plans involve tradeoffs — and they are conspicuously missing from the Trump plan ballyhooed from the White House on Wednesday. It is telling that Ryan's cherished Border Adjustment Tax on imports has been edited out of the White House dreamscape.

As president, Trump has defied democratic norms in so many areas from conflicts of interest to honesty in government that it is easy to assume that any Republican could be more successful on Capitol Hill and elsewhere. In truth, Trump has also been thwarted by trends destined to bedevil any president (whether Hillary Clinton or another Republican) who tries to pass ambitious legislation in the era of Super PACs.

Walter Shapiro, a columnist for Roll Call, has covered the last 10 presidential elections. Along the way, he has worked for two newspapers (USA Today and The Washington Post), two news magazines (Time and Newsweek), two monthlies (Esquire and the Washington Monthly), and three online publications (Yahoo News, Politics Daily and Salon).  Shapiro is also a lecturer in political science at Yale. His book on his con-man great-uncle (Hustling Hitler: The Jewish Vaudevillian Who Fooled the Fuhrer) has just been published by Blue Rider Press. A former Jimmy Carter speechwriter, Shapiro is also the author of "One-Car Caravan: On the Road with the 2004 Democrats Before America Tunes In," a chronicle of the early skirmishing for the 2004 presidential nomination.

He can be reached by email at waltershapiro@ymail.com and followed on Twitter @MrWalterShapiro.