A Campaign-Finance Fiction Crumbles
Super PACs are supposed to be completely independent—but candidates and journalists alike rarely bother to make that distinction anymore.
Toward the beginning of what felt like a 12-hour debate on Wednesday night, CNN anchor Jake Tapper asked Jeb Bush a question about his campaign donors.
Governor Bush, in addition to the fact he's an outsider, one of the reasons Mr. Trump is a frontrunner, Republican voters say, is because they like the fact that he is not bought and paid for by wealthy donors. Mr. Trump has repeatedly said that the $100 million you've raised for your campaign makes you a puppet for your donors. Are you?
The question—and Bush’s response to it—speaks volumes about the state of American campaign-finance law.
No, absolutely not. People are supporting me because I have a proven record of conservative leadership where I cut taxes $19 billion over eight years…People know we need principle-centered leadership, [a] disruptor to go to Washington, D.C. The one guy that had special interest [sic] that I know of that tried to get me to change my views and generous and gave me money was Donald Trump. He wanted casino gambling in Florida.
What’s important here is what Bush didn’t say. Tapper asked Bush about the $100 million that donors have contributed to his campaign. But that money isn't held by his campaign, which only raised $11.4 million as of August 1. Instead, those donations were made to Right to Rise, the super PAC supporting him that raised nearly $103 million in the first half of 2015.
That’s an important legal distinction. Federal election law forbids candidates and their campaigns from coordinating with super PACs. “We are the leading independent organization supporting Jeb,” Right to Rise explains on its website. “That means we do not, by law, coordinate our political activities with Jeb's official campaign committee.”
Theoretically, those coordination bans exist to insulate candidates like Bush against accusations like Trump’s “puppet” quip. In Citizens United, Justice Anthony Kennedy noted that limits on direct donations to campaigns “ensure against the reality or appearance of corruption.” But he didn't apply the same logic to limits on independent expenditures like those made by super PACs. Kennedy quoted a 1976 campaign-finance ruling as part of his rationale.
The absence of prearrangement and coordination of an expenditure with the candidate or his agent not only undermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.
It’s plausible that, in the heat of the debate, Bush chose to focus on his own achievements instead of drawing further attention to the allegation. He certainly wasn’t the only candidate on the stage who ignored the substance of a question last night.
But the underlying assumption is crucial. Tapper is an experienced political reporter who knows the technical difference between a campaign and a super PAC. Bush obviously knows his own campaign doesn’t have $100 million in donations. And yet the distinction between independent expenditures and direct campaign donations didn’t matter during a nationally televised presidential debate. If the candidates, the press, and the public don’t see a difference, why should the Supreme Court?