This piece originally appeared in the Washington Post and at WashingtonPost.com Friday, 5 June 2015 under the headline "The Super PAC Minuet" and the byline George Will. For another facet of this issue, read the author's follow-up "The 'Progressive' Itch to Regulate Speech" at TribLive.com (Pittsburgh Tribune-Review Saturday, 13 February 2016).
Campaign finance “reformers” think the United States would be better governed if the government could thoroughly regulate campaign speech, which is speech about the composition and comportment of the government. Reformers scold the Supreme Court for construing the First Amendment as though it says “Congress shall make no law . . . abridging the freedom of speech.” Reformers say government can limit campaign money without limiting what most of such money funds — political speech.
And since the Supreme Court's 2010 Citizens United decision, reformers have been lamenting a predictable consequence of their success in imposing limits on contributions to candidates and campaigns.
The consequence is the rise of super PACs dedicated to the support of single candidates. So now, reformers insist that super PACs' spending is not really "independent" because it is, in effect, "coordinated". Well.
Since 1976, the court has held that the only legitimate purpose for limits on political contributions is to prevent quid pro quo corruption or the appearance thereof. Citizens United left undisturbed the 1907 proscription on corporate contributions to candidates' campaigns. The case said only, and unremarkably, that citizens do not forfeit their First Amendment rights when they come together in corporations — usually nonprofit corporations, e.g., the Sierra Club, the NAACP, Planned Parenthood — for the shared purpose of advocacy independent of (not coordinated with) any candidate's campaign. The court said that independent advocacy expenditures "do not give rise to" corruption or its appearance.
Two months later, the nation's second-most important court, the U.S. Court of Appeals for the D.C. Circuit, ruled unanimously against Federal Election Commission limits on the size of contributions to independent advocacy committees, including single-candidate super PACs that make no contributions to campaigns and operate independent of candidates and parties.
Super PACs are the result of these decisions — and of the reformers' success in limiting giving to parties and candidates. Reformers, who think "independent" should be a synonym for "disinterested", are appalled by super PACs working to facilitate the election of particular candidates. The Supreme Court, however, has held that limits on the amount an individual can contribute to a candidate or campaign organization are minor restrictions on a person's political expression because the person can spend elsewhere "to discuss candidates and issues" through independent expenditures.
Thus former FEC chairman Bradley Smith, in "Super PACs and the Role of "Coordination" in Campaign Finance Law" (Willamette Law Review, summer 2013), notes that "without the escape valve of independent expenditures, contribution limits would constitute a much greater infringement on speech." The court's focus on quid pro quo corruption clearly demonstrates, Smith says, that the court is not allowing limitations on speech. Rather, it is sanctioning "regulation of a particular type of conduct — the overt exchange of campaign contributions for legislative favors that may not extend to the level of bribery".
The court has consistently held that regulation of campaign financing is constitutional when it regulates conduct rather than speech. The court has implicitly rejected, as a reason for regulating contributions to independent groups, the supposition that large donations distort the political process. It has explicitly said that it "is wholly foreign to the First Amendment" for government to "restrict the speech of some elements of our society in order to enhance the relative voice of others".
While rejecting direct limits on speech, the court allows limits on contacts between speakers (contributors) and candidates or their campaigns. But as Smith writes, contacts will be unnecessary:
Of course super PACs will be started and run by friends, associates and former staffers of candidates; of course they will be funded by supporters, who are likely to have also donated to the campaign . . . ; of course super PACs will attempt to harmonize their strategy with that of their favored candidates for maximum effect.
Casual observers of politics, including most voters, are understandably puzzled by the process of contributing to super PACs independent of (not "coordinated with") the candidates the super PACs are created to help. Perhaps this prompts cynicism among voters who see soon-to-be presidential candidates feign indecision about running while they solicit large contributions to their super PACs. Voters might wonder: Why have this misleading minuet?
Smith's answer is that "anti-coordination" rules are required if limits on contributions to candidates are to have even today's minimal effects. The limits the reformers hoped would decrease cynicism about politics are increasing it, which is just another unpleasant surprise for reformers who are repeatedly surprised by their own consequences. Someday even they might understand the wisdom of choosing what the Constitution, properly construed, actually requires: unregulated politics.