The Mythical Restrictions on Super PACs

The Mythical Restrictions on Super PACs November 28, 2011

ProPublica, a non-profit news organization that has done Pulitzer prize-winning work, takes a look at Super PACs. Those entities are supposed to be independent of any candidate but the reality is quite the opposite.

Ask any campaign-finance expert about super PACs and you’ll likely keep hearing one word: “coordination.” That’s because Super PACs — the super-powered groups that can raise and spend unlimited amounts of money from anyone — have just one crucial restriction on their powers: By law, they’re not supposed to coordinate with candidates.

Think that sounds clear? Think again.

“The restrictions on interactions between candidates and Super PACs are far more modest than the public believes,” said Paul Ryan, a lawyer with Campaign Legal Center, a campaign-finance advocacy group.

So long as candidates and Super PACs don’t discuss the particulars of their election spending — such as exactly where or how long their election ads will run — they’re free to discuss strategy and candidates can even help fundraise. One result: A presidential candidate can ask supporters — even his own father — to give to a Super PAC without it being “coordinated.” Or a group could plan to produce a “fully coordinated” ad with a candidate that it argues is uncoordinated.

“Coordination limits are essentially a joke if you want to avoid them,” said Michael Franz, an associate professor of government at Bowdoin College…

Fundamentally, coordination rules are no laughing matter. Just ask the Supreme Court, which ruled in Citizens United that as long as money is spent independently of candidates — that is, without coordination — corporate and union donations are legal because they “do not give rise to corruption.” With that important restriction, corporations and unions were given free rein to spend as much as they want on elections.

The problem, says Ryan, is that the current coordination rules are so limited the Supreme Court was “either being disingenuous or naïve.” …

While Super PACs began forming in the lead up to the 2010 midterm elections, the big fad so far this year has been the formation of Super PACs dedicated to specific candidates.

Obama, Romney, Perry, Cain, Huntsman, Bachmann — all the major candidates have at least one supporting them now. The groups are often set up by former aides, former campaign managers or close confidantes familiar with both the candidate’s messaging and talking points.

Candidates and their Super PACs are allowed to fundraise together as long as the spending of the money isn’t done in conjunction with the campaign. But as the text above demonstrates, this is a useless distinction when the Super PACs are run by campaign aides. And the FEC says candidates can’t ask for more than $5000, but the person they ask can give as much money as they want to the PAC — another absolutely meaningless regulation. And these are being used by both Republicans and Democrats.

Sometimes the obvious must be stated: We simply cannot rely on any member of Congress, from either party, to put meaningful campaign finance reform in place. They are the ones who benefit from the system being the way it is. The same is true of ethics legislation that governs themselves. The only thing they will offer is a sham series of reforms that have the appearance of solving the problem while actually guaranteeing that it will continue.

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  • slc1

    Even if the congresscritters did put in place meaningful restrictions, the current Supreme Court would probably rule that the restrictions were unconstitutional.

  • Michael Heath

    The problem, says Ryan, is that the current coordination rules are so limited the Supreme Court was “either being disingenuous or naïve.” …

    They could have been both though I’d replace ‘naive’ with denialist since their ignorance/avoidance is demonstrably purposeful. After all, these are conservative attributes the conservative justices consistently demonstrate.

  • The Christian Cynic

    Michael, I’m pretty sure your sentiment is covered by “disingenuous.” The option of naivete is merely a more charitable option, although I would tend to agree that the reasoning is disingenuous.

  • zippythepinhead

    Stephen Colbert has done a great public service exposing the Super PAC “shamrade”. Read the letter posted at, it’s hilarious:

    “As free as Super PACs are to raise and spend unlimited amounts of money, they are still unfairly shackled by regulation. Notice I used the singular. That’s because there is really only one rule that binds Super PACs: that they may not coordinate with candidates’ campaigns. But what fun is buying somebody an election if you have no elected official to share the moment with?”

  • Pierce R. Butler

    Loathe as I am these days to accept the words of anyone named Paul Ryan, the only quibble I can raise with his comments above is the “naive” part.

    We’re coming up on the 11th anniversary of Bush v. Gore, and the damage wrought by the continuing SCOTUS majority of Bush appointees/appointers seems likely to destroy what’s left of US democracy, within about twelve months.

    Where is Lex Luthor with his kryptonite collection when we need him?

  • Pierce R. Butler

    Oops – apologies for that extraneous “e” in # 5…

  • jakc

    If we can’t expect those we elect to fix the problem, then how do you propose fixing the problem?

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