We give Fact Checker one-half Pinocchio: Super PACs and our complex campaign finance system

Back when I was serving as Chairman of the Federal Election Commission, I met with a delegation of officials from China. Since they spoke little English, we conversed through an interpreter. They were full of questions about campaign finance in the U.S., and soon I was trying to explain our incredibly regulated, complex system. There was money spent “for the purpose of influencing an election” and money spent for “federal election activity.” There were “electioneering communications,” “express advocacy of election or defeat,” and “generic campaign activity.” This went on for some time until finally the interpreter was forced to tell me, “We have to stop. There are no words to make these distinctions in translation.”

This comes to mind because of a column this week by The Washington Post’s Fact Checker. Michelle Ye Hee Lee, reporting for Fact Checker, writes that Bernie Sanders’ claim to not have a super PAC is “a guaranteed drink for Debate Night Bingo.”

Ms. Lee then examines Sanders’ claim. She correctly notes that, in fact, Senator Sanders is supported by super PACs. In particular, a super PAC called the National Nurses United for Patient Protection (NNUPP) “has spent nearly $1.2 million as of February 2016 in support of Sanders.” But she quotes the NNUPP’s Charles Idelson, who apparently bristles at the thought of being a super PAC, even though that is exactly what NNUPP is. Says Idelson:

“We do not view it as a super PAC. We view it as a committee that was formed many number of years ago, long before Senator Sanders was running for president, that supports other candidates who are supported by nurses because of their commitment to nurses’ values and issues like health care for all.”

Of course, citizens who support candidates because of their commitment to shared values is what super PACs are. And Idelson even goes on to defend super PACs, though it’s not clear if he understands why the concept of a super PAC is so important to preserving our First Amendment rights and a free, functioning democracy, or if he just thinks it’s good for nurses’ political power. Idelson again:

“Nurses are not billionaires. The only way they can have a voice in the presidential politics is by collective pooling of their resources to engage in [a] grassroots campaign for the candidates they support.”

Exactly. Does anyone really want a system in which citizens cannot do this? Does Bernie Sanders really think this is a bad thing?

We suspect the answer is no.” So Sanders’ blanket attack on “super PACs” is misguided. Sanders’ real target appears to be super PACs that exist for the purpose of advocating the election of a single candidate, and the fact that they draw much of their funding in large contributions. (Sanders likes to talk about corporate contributions, but in fact the overwhelming majority of super PAC funds come from individuals).

Anyway, Ms. Lee notes that legally a super PAC is a super PAC, so in that sense Sanders’ claim is false. But she also notes, correctly, that different super PACs have different funding sources and patterns, and that some super PACs, such as NNUPP, exist more or less permanently and to elect many candidates, while others are formed for one election to elect one candidate, and may be formed by people with a long history of support for that candidate (though why that should ever surprise anyone remains a mystery). To her credit, Ms. Lee appears to recognize that coordination” is a legal term that has specific legal connotations, and doesn’t fall for the rhetorical trick that the reform community likes to play, of confusing the legal definition of coordination” with the practical fact – which they call coordination” – that a super PAC may fervently hope for a candidate to win, be run by supporters of that candidate, and will often try to align its activities with that of the candidate’s campaign.

To do this, however, Ms. Lee describes this latter category of Super PAC, throughout her column, as an affiliated” PAC. And she concludes:

“[I]t’s fair for Sanders to make the distinction that he, unlike Clinton and most of the Republican candidates, is not affiliated with the super PAC.”

Oops. In fact, in turns out that affiliated” also has a specific legal meaning in campaign finance law. In fact, being an affiliated” PAC, under the law, places more restrictions on you than coordinating” does. Spending by an affiliated PAC is not merely treated as coordinated,” it is treated as if it were spending by the candidate’s committee.

As a legal matter, therefore, it is as incorrect to say that Clinton and most of the Republican candidates are affiliated” with a super PAC as it is to say that Sanders has not benefited from super PAC support.

My point here is not to beat up Ms. Lee, who appears to be trying harder, and more successfully than most reporters to communicate some of the ridiculously fine distinctions mandated by our complex, highly regulated campaign finance system. It’s not even to beat up Senator Sanders – after all, he’s trying to get votes, and you don’t get votes by speaking rationally and seriously about campaign finance regulation and attempting to accurately explain to your listeners what a super PAC is, what Citizens United actually did (hint: it did not create super PACs), or why having wealthy millionaires support you with millions in publicity is OK so long as they don’t do it through a super PAC.

Rather, I just want to make a few points that can’t be made often enough. First, our campaign finance system is now so complex and highly regulated, with so many rules and distinctions, that it is almost impossible for normal Americans who don’t specialize in the field to even discuss, let alone fully understand. We don’t have enough words. Second, that few Americans who think seriously about campaign finance really oppose the core concept of super PACs – that Americans should be able to pool their resources to support the candidates and issues they favor, like the NNUPP. Third: Correspondingly, when Democrats in the Senate vote unanimously to repeal these First Amendment protections, or Senator Sanders rails against these protections, they are indeed striking at core beliefs about free speech that most Americans still find desirable, regardless of how, like Mr. Idelson, they might react to the specific term “super PAC.”

In the end, Fact Checker concludes:

“As currently framed, however, Sanders’s statement does not quite qualify for a Geppetto Checkmark. We would give half a Pinocchio if we could, but we do not use half-Pinocchios. So Sanders earns One Pinocchio.”

That’s probably about right. The real big Pinocchios should go not just to Senator Sanders, but to all those politicians who consistently misrepresent the Citizens United decision, the role of money in politics and the state of the actual law, and the effects of their proposed regulations on core constitutional freedoms; and to the denizens of the so-called reform community who have created such a system, and work tirelessly to confuse Americans about the actual state of the law. But since we’ve come this far, and since we do not have qualms about using half Pinocchios, we’ll give a half Pinocchio to Ms. Lee here. We do this well aware that her violation was almost certainly unintentional, and that almost anytime we start discussing campaign finance, someone can probably find a way to award a half Pinocchio – even to our own columns, we suspect. Our solution would be a simpler, more open, more transparent, more user-friendly system. But to reformers, such a freedom option will never be on the table.

The Center for Competitive Politics is now the Institute for Free Speech.