McCutcheon’s Silver Lining: How It Could Undermine Super PACs

By Steven Hill, The Atlantic, April 3, 2014

The Supreme Court’s ruling puts more money into politics, but it could help parties and candidates wrest back some control.

Wednesday’s Supreme Court ruling in McCutcheon vs. Federal Election Commission is the latest in a long parade of horribles, as many commentators have pointed about. Previous decisions like Citizens United vs. FEC and the D.C. Circuit Court’s ruling in v. FEC opened the cash spigot for corporate spending in political campaigns and individual contributions to independent-expenditure committees, respectively. Now McCutcheon will allow uber-wealthy individual donors to give nearly 30 times more than before directly to candidates and political parties. It will also likely unleash a new and voracious animal: joint fundraising committees, which will bundle large donations from donors and funnel the cash to various candidates and party committees, in full knowledge of who wrote the original check.

If all these terms are confusing, the bottom line is this: Three decades of campaign-finance reform have been overturned. If these were gun-control laws, it would be a bit like the Supreme Court saying, “Everyone who can afford it can now can have their own nuclear arsenal. Good luck.”

That said, there’s a quirky silver lining here. Before this ruling, shadowy independent-expenditure committees had come to dominate U.S. politics because—unlike candidates and parties—they were allowed to receive unlimited amounts of cash from donors. The donations also were made anonymously, a loophole that allowed a lot of so-called “dark money” to flow directly into elections. The most notorious of these became known as super PACs, which Stephen Colbert satirized with his “Americans for a Better Tomorrow, Tomorrow” super PAC. In 2012, GOP donor and casino magnate Sheldon Adelson gave nearly $100 million in super PAC contributions to defeat Barack Obama and other Democrats. On the left, super PACs like American Bridge 21st Century and Priorities USA Action spent millions to defeat Republicans.

Super PACs are prohibited from working with any candidates they’re supporting. Under FEC rules, super PACs cannot spend money “in concert or cooperation with, or at the request or suggestion of, a candidate, the candidate’s campaign or a political party.” According to previous court rulings, this restriction is intended to prevent “the appearance of corruption” in the form of quid pro quo favors between donors and the candidate or officeholder. Yet many super PACs—while apparently avoiding regulators’ objections—have operated in ways that don’t pass a basic smell test; many are run or advised by a candidate’s former staff or associates. And some have gotten snagged in improper behaviors. A super PAC supporting Newt Gingrich’s 2012 Republican presidential bid, Winning Our Future, was fined more than $1.6 million for violating disclosure laws.

While super-PAC support can be a boon to an office seeker, the ban on coordination creates the danger of a politician being unable to control his or her own message—especially since candidate spending can pale in comparison to super PACs budgets. In one absurd example, Gingrich publicly called on Winning Our Future to stop running an attack ad run on his behalf against his primary opponent Mitt Romney, while being careful to disavow coordination. The system puts candidates and parties in danger of becoming an afterthought, overwhelmed by independent expenditures. In January 2012, Senator John McCain warned: “There’s too much money washing around politics, and it’s making the campaigns irrelevant.”

So even as McCutcheon tips the playing field in favor of wealthy donors over ordinary citizens, it also in a perverse way levels the playing field for politicians, by allowing candidates and political parties to receive larger donations and thus giving them the chance to spend sums closer to what the super PACs do. Yes, it’s a corroded silver lining—kind of like allowing one gang of thugs to better compete against another gang of thugs: Each is partly in check, but the net result is more thuggery.

Some donors might still prefer to give to super PACs, since the law allows them to do so anonymously, while donors to candidates and parties must be fully identified. On the other hand, giving donations directly to campaigns and parties might be a more effective way of building good will with a prospective officeholder, so some deep-pocketed donors may find it more to their liking to give directly. Since McCutcheon effectively raises the aggregate donation limit to approximately $3.5 million from $117,000, they will be able to write bigger checks than ever. And since one of the major goals of donating is gaining pole position for quid pro quo favors after the election, they can now make sure the officeholders know who scratched their back.

None of this of course changes the overall picture—American elections now will be even more for sale to the highest bidder and candidates more beholden to those who with immense economic wealth. This doesn’t mean the candidate with the most money will always win, but it permanently warps the political landscape. In his dissent to Citizens United in 2010, Justice John Paul Stevens wrote, “At bottom, the Court’s opinion is … a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt.”

Now the five-vote majority of the justices (all appointed by Republican presidents) has gone even further out on the same limb. The full impact of these rulings will be realized not in theory but in practice, so many will be watching anxiously to see how exactly this plays out in the 2014 midterm elections. But there’s little doubt that it’s another step in America’s slide from democracy to kakistocracy.

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