McCutcheon's Silver Lining: How It Could Undermine Super PACs

The Supreme Court's ruling puts more money into politics, but it could help parties and candidates wrest back some control.
Jonathan Ernst/Reuters

Wednesday's Supreme Court ruling in McCutcheon vs. Federal Election Commission is the latest in a long parade of horribles, as many commentators have pointed about. Previous decisions like Citizens United vs. FEC and the D.C. Circuit Court's ruling in SpeechNow.org v. FEC opened the cash spigot for corporate spending in political campaigns and individual contributions to independent-expenditure committees, respectively. Now McCutcheon will allow uber-wealthy individual donors to give nearly 30 times more than before directly to candidates and political parties. It will also likely unleash a new and voracious animal: joint fundraising committees, which will bundle large donations from donors and funnel the cash to various candidates and party committees, in full knowledge of who wrote the original check.

If all these terms are confusing, the bottom line is this: Three decades of campaign-finance reform have been overturned. If these were gun-control laws, it would be a bit like the Supreme Court saying, “Everyone who can afford it can now can have their own nuclear arsenal. Good luck.”

That said, there's a quirky silver lining here. Before this ruling, shadowy independent-expenditure committees had come to dominate U.S. politics because—unlike candidates and parties—they were allowed to receive unlimited amounts of cash from donors. The donations also were made anonymously, a loophole that allowed a lot of so-called “dark money” to flow directly into elections. The most notorious of these became known as super PACs, which Stephen Colbert satirized with his “Americans for a Better Tomorrow, Tomorrow” super PAC. In 2012, GOP donor and casino magnate Sheldon Adelson gave nearly $100 million in super PAC contributions to defeat Barack Obama and other Democrats. On the left, super PACs like American Bridge 21st Century and Priorities USA Action spent millions to defeat Republicans.

Super PACs are prohibited from working with any candidates they're supporting. Under FEC rules, super PACs cannot spend money “in concert or cooperation with, or at the request or suggestion of, a candidate, the candidate's campaign or a political party.” According to previous court rulings, this restriction is intended to prevent “the appearance of corruption” in the form of quid pro quo favors between donors and the candidate or officeholder. Yet many super PACs—while apparently avoiding regulators’ objections—have operated in ways that don’t pass a basic smell test; many are run or advised by a candidate's former staff or associates. And some have gotten snagged in improper behaviors. A super PAC supporting Newt Gingrich’s 2012 Republican presidential bid, Winning Our Future, was fined more than $1.6 million for violating disclosure laws.

While super-PAC support can be a boon to an office seeker, the ban on coordination creates the danger of a politician being unable to control his or her own message—especially since candidate spending can pale in comparison to super PACs budgets. In one absurd example, Gingrich publicly called on Winning Our Future to stop running an attack ad run on his behalf against his primary opponent Mitt Romney, while being careful to disavow coordination. The system puts candidates and parties in danger of becoming an afterthought, overwhelmed by independent expenditures. In January 2012, Senator John McCain warned: “There’s too much money washing around politics, and it’s making the campaigns irrelevant."

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