The Anniversary of and the Rise of the Super PAC

March 26, 2012   •  By Zac Morgan
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Citizens United gets all of the attention: the protests, the whole being called the “Dred Scott of our generation” thing. But if you really think that super PACs are the root of all evil, then you ought to take your attention elsewhere.

All Citizens United permitted was corporate or union independent expenditures. Under Citizens United, as long as it did not coordinate with any candidate or cause, MillerCoors can run ads, paid for from their general treasury, attacking President Obama for drinking a Bud Light at the much-vaunted 2009 White House Beer Summit. But nothing in the opinion asserts that Pete Coors could pour unlimited contributions into the coffers of, say, Americans for a Shiny America, an independent expenditure only committee that would run ads in favor of candidates who pledge to air Firefly re-runs on PBS.

The Center for Competitive Politics (CCP) helped out an organization that wanted to do just that. (Well, minus the Firefly re-runs.) Together with the Institute for Justice, we represented–a group then headed by our current president, David Keating–in Federal court against a government that was attempting to limit the amount of resources available to SpeechNow, a committee that just wanted to talk about politics without actually giving money to or working with the politicians.

On March 26th, 2010, v. FEC was handed down by the United States Circuit Court of Appeals for the District of Columbia; and the much unfairly maligned “super PAC” (or independent expenditure-only committee) was born.  Today, the super PAC turns two.

Super PACs are the exact opposite of what the pro-regulation community wants. For decades, the speech regulators have fought to squelch as much independent speech as possible. The ultimate end-goal of many of these folks is so-called “voter-owned” elections…and by that they mean that the government gets to predetermine which candidates are worthy of financial support and then is allowed to shower those candidates with money.

And, of course, the incumbent government will be sure to protect its own. In the McCain-Feingold law, a provision existed which allowed candidates challenged by self-financed candidates to raise money at three times the legal contribution limit. Why? Because self-financed candidates tend to be challengers, and they have the resources to mount a full-scale campaign to unseat an incumbent. (This provision was rightly ruled unconstitutional by the Supreme Court in 2007 but only after incumbents had been given special protection for two consecutive election cycles.)

In truth, what Super PACs really do is upset the incumbent-protection apple cart. They allow any person or association to get together and speak about politics. They allow those people and organizations that are outside of the insider-y/campaign consultant universe to say whatever they want to say, whenever they want to say it. Super PACs are exactly the sort of unfettered political speaking tool that is necessary if we are going to take seriously the phrase “Congress shall make no law…abridging the freedom of speech.”

So today, remember: you have the right to say whatever you want about any politician, candidate, campaign, or cause. And the government cannot squelch your speech by denying you the ability to raise enough money to get your message out.




Zac Morgan

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