When it comes to campaign spending, we know only a fraction of the information we have the ability to know.
Today, Jan. 30, 2012, is a uniquely strange day in the history of American democracy. It's the day before Florida's Republican primary, and the gap between the million dollars in outside spending and the possibility of transparency through technology is, quietly, bigger than it has ever been in the history of the republic. "There's really two phenomena here," says Commissioner Ellen Weintraub of the Federal Election Commission, "the creation of the super PACs and the compression of the primary schedule." We'll add a third: the blurring of the line between coordination and independence. They add up to mean that, when it comes to campaign spending, at this very moment we know only a fraction of the information we have the ability to know.
Of course, Citizens United, decided by the Supreme Court two years ago this month, threw out restrictions on campaign funding by corporations and unions. But it was SpeechNow.org vs. FEC, decided by the D.C. Circuit Court of Appeals two months later, that opened the doors to unlimited spending by groups of individuals, as long as they're not in cahoots with campaigns. The two decisions together created "super PACs," largely unfettered political-spending vehicles with comically oblique names like Restore Our Future and Winning Our Future and Priorities USA. But these new groups weren't free to do whatever they pleased. The courts threw their weight behind the idea of transparency, singing of the Internet's ability to keep the system sane.
"A campaign finance system that pairs corporate independent expenditures with effective disclosure has not existed before today," the Supreme Court said in its Citizens United decision. But, "with the advent of the Internet, transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages." The lower court affirmed the validity of disclosure.
But it hasn't exactly played out that way. And January 2012 in presidential politics in particular has conspired to show how far we are from the Supreme Court's wired utopia.
When it comes to timing, the key here is that while campaigns and super PACs alike have to disclose what they're spending on "independent expenditures" right away -- that's how we know, for example, that super PACs have already dropped $44 million on ads by super PACs this cycle, and that information is quickly put up online at FEC.gov and used by groups like OpenSecrets, MapLight, and The New York Times API -- super PACs are allowed to disclose who is paying for those ads at a far more leisurely pace. And, in December, clever election lawyers at super PACs associated with Romney, Gingrich, and Huntsman switched filing from four times a year to once a month. (It was barely a formality; the pro-Gingrich superPACs letter was all of 19 words.) "Normally, switching from quarterly to monthly is a good thing, because you're getting more disclosure," says the FEC's Weintraub. But here, it had all the grace of breaking up with your girlfriend right before her birthday. If you file four times a year, you see, you also have to file before each primary. Monthly filers, though, can skip that step.
The filing schedules are decades old, dating back to when primary season stretched far longer. And in the pre-Citizens United era, no one thought much about it. "There's only so much influence you can buy for $5,000," says Weintraub.
What all that calendar shifting meant, in practice, is that the super PACs bought themselves until tomorrow to file with the FEC for the first time this year. What's more, that disclosure will only cover who gave what through the end of December. We won't know until the end of February who funded advertisements in the front-loaded portion of primary season -- Iowa, New Hampshire, South Carolina, and Florida. By that time, Nevada, Maine, Colorado, and Minnesota will have wrapped their candidate selection, too. "There's been some concern," says Weintraub, "that this whole thing could be over before the reports have been filed."
Other factors of modern politics are critically important here, too. The information-saturated, media-driven political landscape has changed what it means for a super PAC to run independent of a campaign. "The court has put more weight on that distinction between coordinated and independent than that distinction can bear," Weintraub says. What counts as coordination is a fuzzy question when candidates and their surrogates are constantly laying out their talking points in countless tweets, debates, interviews. The Obama campaign has, for one, made a specialty of distributing online strategy-briefing videos. "Why," asks Weintraub, "do you need to have a conversation to figure out what would be useful for them?"
Moreover, these are groups run by buddies and funded by friends. Winning Our Future, the Gingrich-backing super PAC that has been in the news much was formed last month by Becky Burkett, who worked for a PAC founded by Gingrich. We learned that casino billionaire Sheldon Adelson and his wife had given $10 million to the group only because of energetic reporting and because Adelson seems to like to talk. The pro-Romney Restore Our Future is run by former aides. Priorities USA Action, a super PAC backing Obama, was created by former White House spokesman Bill Burton and other allies. They had no choice, the Democrats argued. "We will follow the rules as the Supreme Court has laid them out," Burton said, according to the L.A. Times, "but the days of the double standard are over.”