The Darkest Day in the History of American Super PACs

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When it comes to campaign spending, we know only a fraction of the information we have the ability to know.

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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.”

"When you read the bare facts," says the FEC's Weintraub, "it makes people scratch their heads and say, 'In what sense is that not coordinated?' Super PACs are functioning as alter egos of the candidates' committees, and are being run by their friends." Who, I ask Weintraub, has the responsibility for policing coordination? "We do, I suppose," she says. Then she sighs.

While super PAC critics argue that citizens deserve to know who's funding third-party ads -- that the information that Adelson seems motivated in large part by Gingrich's stance on Israel, for example, is needed before they make an informed judgment on its contents -- critics of campaign-finance restrictions say they find that silly. Paul Sherman is a staff attorney at the Institute for Justice and co-counsel on the SpeechNow.org case. He argues against data deluge; revealing who's funding super PACs risk swamping citizens with useful information. At worst, it's voyeuristic. "People who want to go out and vote for Newt Gingrich or Mitt Romney aren't going to be persuaded to do so based on who's funding an advertisement," says Sherman in a call last week. "It's ultimately up to the voter to view an ad and make a decision on it. Groups that are just talking to the public shouldn't have to deal with this nonsense, and people should be allowed to be anonymous."

Of course, the Supreme Court has seen things differently, and said so strongly in Citizens United. For many on the free-spending side, though, the bloom has gone off the idea of transparency through technology. "A lot of Republicans used to say, 'Let's have instant, terrific disclosure," says Weintraub. But, with that case and SpeechNow settled, "suddenly, having a lot of disclosure isn't as appealing as it used to be."

With the FEC seen as moribund and powerless, campaign-finance advocates are looking to Congress to make super PAC transparency more than a dream. The DISCLOSE Act of 2010 died in a storm of controversy over its NRA-carveouts and bans on contributions from government contractors and TARP recipients. Minority Leader Nancy Pelosi is making noises about reviving DISCLOSE. But also getting attention is the Stop Undisclosed Payments in Elections from Ruining Public Accountability in Campaigns Act, drafted by the Sunlight Foundation. The SUPERPAC Act is a pared-down DISCLOSE Act, limited to just its disclaimer and disclosure provisions. Donors would have to be reported to the FEC alongside expenditures, and stand-by-your-ad requirements mean that top funders would be identified in the advertisements themselves. The bill would mandate that data would move in and out of the FEC in digital, standardized formats.

"It's not that hard," says the Sunlight Foundation's Lisa Rosenberg. "It's all online. You type in a few numbers and hit 'send.'" Sunlight has put its working version of the SUPERPAC Act up on PublicMark.org so that anyone might comment upon it.

Will Congress actually move on writing tech-enabled super PAC transparency into the law? They might be newly motivated to, says Rosenberg. She points to the Massachusetts Senate race, where Republican Scott Brown and Democrat Elizabeth Warren announced a pact last week meant to limit third-party spending in their race. For every dollar spent by an outside group in on-air or online ads, the supposed beneficiary has to donate 50 cents to the charity of his or her opponents' choice. Such a thing is difficult to police, especially where micro-targeted online ads are concerned; Brown sent out an email on Wednesday telling supporters that if they should see "any pro-Warren online advertising," they should let his digital director know.

"Candidates ought to be afraid of this phenomenon," says Sunlight's Rosenberg. "Either they've lost control of their campaigns or they're coordinating and breaking the law."

When all is said and done, the Weintraub and Sherman might not agree on much, but they do agree on... Stephen Colbert, and his  (Definitely Not Coordinating with Stephen) Colbert Super PAC. The comedian, says Weintraub, is doing a great public service by focusing attention on campaign spending. Sherman concurs, arguing that what Colbert is really educating the public on is the fact that, in the United States circa 2012, the rules that govern spending by candidates and spending by super PACs differ tremendously without any logic explaining why that is the case. "Unfortunately," says Sherman, "the situation looks absurd."

That seems to be true no matter where you're standing.

Image:Dim Dimich /Shutterstock

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Nancy Scola is a writer based in New York. She has written for New York, Salon, and Seed, and is a frequent contributor to The American Prospect.

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