David Frum’s thoughts about Super PACs are a useful reminder that not all the objections to these PACs are the same, not all fall within the usual range of complaints about bought-and-sold government or deepening political inequality.  Frum suggests that PACs may be victimizing donors and suffering abuse at the hands of their consultants, and that candidates, behind claims of independence, can and do disclaim all responsibility for these organizations’ behavior.  This is a set of concerns a few steps removed from the once dominant worry that these PACs would swing elections.

This perspective opens up a discussion of whether Super PACs can be brought within reasonable regulation, to deal with specific problems, without limiting the goal to the difficult and contested one of limiting independent spending.  The choice is between a hunt for anti-coordination strategies, which is essentially the hope to undo the Buckley guarantees for independent expenditures, and developing more conventional rules to account for the emergence of these PACs and the gaps in the regulatory system within which they are operating.

This is the main point urged on the reader in this paper on Super PACs: they're unlikely to disappear, because they are product of the logic of Buckley rather than a distortion of it.  Without a major change in the constitutional law, it is difficult to see how significant limits on Super PACs can be legislated or brought about by regulatory fiat.  Moreover, the “anti-coordination” rules that many are calling for would entangle and damage political organizations other than super PACs and raise legitimate, serious free speech and association issues.

At the same time, there is room for reform--some adjustment to the regulatory process--that would account for the Super PACs’ emergence and widening impact.  Transparency measures can clearly identify for the public those single-candidate Super PACs operating with the candidate’s active support and involvement.  Additional resources could be made available to other actors--parties and others--that are now more regulated than Super PACs and, and in part for that reason, steadily losing ground to them. The goal would not be a deregulated campaign finance system but one that is more rationally structured and coherent.

Rick Hasen worries that the “cure may be worse than the disease.”  He is suspicious or concerned that this is a move to restore the soft-money days that McCain-Feingold was supposed to close out.  But the proposal is not inspired by special solicitude for parties.  Parties are one of a number of electorally active organizations that would benefit from an infusion of resources but there is no case for making them the only ones.  Targeted regulatory relief should be available for other membership-based organizations, and even to candidates when conducting particular voter mobilization activities.

What Rick and others overlook, minimize, or dispute is the role of reinvigorated associational activity in enhancing political equality--in advancing the goal of "the quality of inputs" that Rick champions.  In his very good book, Plutocrats United, Rick does not grapple with the dependence of political equality on organizing and other means of building political strength on numbers, particularly among the very population of citizens he is most concerned with: those with modest resources.  As Guy-Uriel Charles has summed up the significance of association, its “main principle…is that of effective aggregation: an individual must have a reasonable opportunity to join with like-minded others for the purpose of acquiring political power.”  Guy-Uriel E. Charles, Racial Identity, Electoral Structures, and the First Amendment Right of Association, 91 Cal. L. Rev. 1209, 1248-1249 (2003).

The Federal Election Commission has not solved the “Super PAC problem,” but then again the Commissioners cannot agree on what the problem is. Others outside the agency are divided in this same way. A number of questions in contemporary campaign finance are like that. Because positions are passionately held, each side is convinced that the other is not merely mistaken but dead wrong, maybe also ill-motivated. Given the chance, proponents and opponents of new rules would like to win however they can.

So there is the hope that the Supreme Court can be shifted by a vote toward a more favorable judgment on congressional power to control campaign finance. And proposals are made to strengthen the FEC for a more decisive role. The Brennan Center suggests that the FEC could make strides in the direction if it could be restructured to a) bring an element of nonpartisanship into the choice of Commissioners, by assuring that at least one is unaffiliated with a party and b) add an additional Commissioner to the total to get to an odd number and avoid deadlocks. The changes would supposedly work together to make good decisions: the odd number of Commissions guarantees decision, and the provision for nonpartisanship improves the chance that the decision will be a good one. To secure this ingredient of nonpartisanship, the Brennan Center suggests a “blue ribbon advisory panel” to recommend nominees for consideration by the President.

The goal of a decision is different from the goal of a good decision and so, in this respect, an odd number of Commissioners only gets us so far. And no one has yet defined how “blue ribbon” recommendations of Commissioners, or the requirement that one or more of them be unaffiliated with any political party, will achieve a particular reform objective.  “Nonpartisan” Commissioners will not be without opinions; they will hold views that inform their regulatory positions, just as there are independents who reliably identify with one party or the other.

One prominent scholar recently suggested on the election law listserv that the poor returns on Jeb Bush’s campaign spending tell us something about how unreliably money “talks” in elections.  Another prominent scholar replied, saying that this remark "completely missed the point” about the power of money in politics.

As the presidential election year moves along, it is natural for the debate to crank up over whether assumptions about money and politics, particularly in the era of Super PACs, have proven to be facile.  Among the various, conflicting views are those that surfaced in this list serv exchange.  The position dismissed as completely simplistic holds that money has been shown to be a weak factor in competitive elections.  The other, opposing view counters that the role of money in politics, while highly significant, has to be more discriminately analyzed, in more nuanced fashion.

The nuanced theory avoids some of the problems of overstatement but falls potentially into the risk of being both highly nuanced in its content and yet rhetorically bold in its presentation.  The argument takes various forms, but one is found in an article Rick Hasen wrote not too long ago in The Washington Post, entitled "Money Can't Buy Jeb Bush the White House, but It Still Skews Politics."  There, Hasen argues, that money is “key,” but when it is key, and how, all depends on the circumstances.  In high salience presidential campaigns its effects might be less powerful than in elections down the ballot, where interest is less intense and voters more weakly informed. Its effect, where it has one, is a “skew”, and it may be "subtler” in impact than reformers claim, but it is “equally pernicious” in advancing the interests of donor class.

There is a shift here to more careful claims about what money buys and when: that it counts for more in some races than in others; that it is not all that effective if the candidate is a “bad product”; that money’s effects are more of a “skew” than a power play; and that those effects are not always all that obvious unless you look closely.  But there is little change in the statement of campaign money’s impact: it is large, pernicious and pervasive, and it accounts for “the rise of a plutocratic class capturing private benefits for personal gain.”

Now this position may sound like the long-standing corruption argument now having to straddle the line between its empirical and moral foundations—having to concede after all this time the complexity of money’s effects while insisting that the corruption remains as bad as ever.  But Rick is not an anti-corruption theorist of the old school.  He is arguing for campaign finance regulation as an antidote to extreme political inequality, a position forcefully and skillfully laid out in his new book, Plutocrats United.

This argument based on considerations of political equality can gain force from a “skew” resulting from superior resources.  But it is not dependent on it. And it also does not require claims about the extent, significance or political bias of the “skew.”

Right now the basic complaint about Super PACs is that they can enlist the and endorsement support of their favored candidates, as in fundraising, and still claim they are “independent” and spend without limit.  But the Supreme Court—not the FEC, not wily campaign finance lawyers—is the reason why this is possible.  In Buckley, the Court tied “independence” to the coordination of specific expenditures with candidates. Without this coordination, the Buckley Court determined, the candidate runs the risk that the expenditure could be unhelpful or counterproductive and is not fairly charged with a “contribution” subject to limits.

No candidate request, control or involvement means, therefore, no spending limits.  The independent committee's public advertising then must contain a specific statement that the candidate did not "authorize" the communication. 11 C.F.R. §110.11(b)(3). This may be true, but the voter checking the committee’s formal registration with the FEC will find that the committee declares itself, and not just a specific expenditure, to be unauthorized.

In a technical sense, this is true: the committee is “unauthorized” because it is an independent committee whose expenditures are made without the candidate’s direction or involvement.  But the absence of control over or involvement in particular independent committee expenditures does not mean the absence of any contact with the committee.  The candidates can applaud an independent committee’s formation and operation for their benefit, and they may appear at the committee's events as guests or featured speakers and assist with its fundraising.

Voters may well be perplexed.