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“Fully Fledged Substitutes For Campaigns”: When Is A Campaign Not A Campaign? When It’s A Super Pac

These days, presidential candidates are not just raising money for their own campaigns. They are also raising money for outside groups with generic sounding names like Priorities USA, Right to Rise and Our American Renewal.

These are Super Pacs (political action committees), affiliated with each outside campaign but nominally independent. In 2012, they were helpful appendages. This year, heading into 2016, they are becoming fully fledged substitutes for campaigns, taking over functions including opposition research, polling and even knocking on doors.

Super Pacs are just five years old. Like most developments in modern campaign finance law, they were created by accident through judicial decisions, not by legislation.

First, in 2010 the Citizens United supreme court decision struck down restrictions on independent expenditures in campaigns by nonprofits. Citizens United was followed the same year by a decision by the DC circuit court of appeals in a case called SpeechNOW, which said political groups that sought to make only independent expenditures could not be subject to federal campaign contribution limits.

These two decisions combined to create “super” versions of previously existing political action committees, that would make expenditures independently of the candidates they supported and thus could raise as much money as they wanted. In other words, one donor can fund an entire Super Pac.

In the 2012 Republican primary, Super Pacs were credited with keeping the campaigns of Newt Gingrich and Rick Santorum alive for months, extending the race into the spring.

In that race and the general election that followed, Super Pacs were primarily used to run television ads. American campaigns have long focused on saturating the airwaves with advertisements; Super Pacs provided a new vehicle to air even more commercials. Campaigns, however, still have major advantages over Super Pacs when it comes to buying television time.

Within 60 days of a general election or 45 days of a primary, political campaigns are entitled to something called “lowest unit rate”. It means that a political campaign gets the lowest rate a television station offers to any advertiser, and it is coupled with the requirement that stations give political campaigns “reasonable access” to run ads. Lowest unit rate also means TV stations cannot censor or restrict ads that federal campaigns seek to run.

None of these rules apply to Super Pacs. This means that they have to pay a much higher rate per ad and may find it more difficult to get their advertisements on television.

However, all such advantages for campaigns pale next to the fact that Super Pacs can raised unlimited money from an individual donor. Federal campaigns can only take $5,400 from any individual ($2,700 for a primary election and another $2,700 for a general election). So while campaigns can get more value for their money when spending on advertising, Super Pacs don’t have to worry too much about value.

And this year, they are not worrying too much about just running television ads.

The nascent campaign of Jeb Bush has been entirely headquartered out of an organization called Right to Rise. The group is on pace to raise more than $100m in May alone and is expected to be significantly better-funded than Bush’s inevitable presidential campaign.

Bush has also set up a connected nonprofit, Right to Rise Policy Solutions, which is serving as a parking place for campaign policy advisers until the former Florida governor announces his candidacy.

Perhaps the most remarkable aspect of Right to Rise is that it is expected to be led by Bush’s top political adviser, Mike Murphy. Because Super Pacs cannot coordinate with campaigns, this means that Bush will probably be unable to communicate with Murphy for the duration of the campaign.

While Bush has yet to declare his candidacy, Ted Cruz, who has announced his bid for the White House, has also bragged about the success of the four interrelated Super Pacs that are backing his campaign.

In a speech at the April meeting of the Republican Jewish Coalition in Las Vegas, the Texas senator boasted that a Super Pac supporting him had “raised $31m” in the first week of his campaign. “That’s more money than any other Super Pac has raised … in the history of politics” in a comparable period, he said.

Each of the four Super Pacs supporting Cruz is funded entirely by one major donor and devoted to one specific campaign task.

Nor are Republicans alone in such activity. Hillary Clinton, the clear Democratic frontrunner for 2016, is holding a number of fundraisers for one of her affiliated Super Pacs, Priorities USA. A separate group, Correct the Record, has spun off from the Democratic research Super Pac American Bridge, solely to do rapid response for Clinton.

Correct the Record insists it will be able to coordinate with the Clinton campaign, despite taking unlimited contributions, because it will not run any ads on her behalf.

Not all of this may end up being legal. But as Rick Hasen, an election law expert who teaches at University of California, Irvine, points out, even “if some of these things don’t pass muster with the courts”, such matters probably won’t be resolved until after the 2016 election.

Furthermore, campaign finance may have changed dramatically by the time such legal issues are resolved.

“Nothing is permanent when it comes to campaign finance,” said Hasen.

For now, though, the landscape is dominated by Super Pacs.


By: Ben Jacobs, The Guardian, May 17, 2015

May 18, 2015 Posted by | Campaign Financing, Citizens United, Super PAC's | , , , , , , | Leave a comment


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