Political contribution caps only funnel cash to SuperPACs

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Updated: February 19, 2012 8:14AM

Winning Our Future, a “SuperPAC” that supports Newt Gingrich’s bid for the Republican presidential nomination, is spending more than $1.2 million on ads in South Carolina, which holds its primary on Saturday. That fact requires some explanation.

First, why would anyone want Newt Gingrich to be president? Second, what is a SuperPAC? While the former question remains a mystery, the answer to the latter reveals how the vain crusade to curb the influence of money on elections has made talking about politics needlessly cumbersome and complicated.

Unlike conventional political action committees, which give money to campaigns and must obey limits on the contributions they receive, SuperPACs spend money on their own ads and can receive unlimited contributions, including money from unions and corporations. They exist thanks to Citizens United v. FEC, the 2010 ruling in which the Supreme Court lifted restrictions on political speech by unions and corporations, plus subsequent decisions by the U.S. Court of Appeals for the D.C. Circuit and the Federal Election Commission.

Those decisions were based on the same logic as Buckley v. Valeo, the 1974 case in which the Supreme Court overturned the Federal Election Campaign Act’s spending limits. “Because virtually every means of communicating ideas in today’s mass society requires the expenditure of money,” the Court observed, restricting spending amounts to restricting speech.

At the same time, the Court upheld caps on campaign contributions (currently $2,500 per candidate for individuals, $5,000 for PACs), reasoning that the expressive value of such donations does not hinge on the amount involved and that allowing unlimited giving would invite “improper influence.” The distinction between spending and contributions was always dubious, since the former requires the latter except for candidates who are wealthy enough to finance their own campaigns. It is even shakier now that groups like Winning Our Future are run by candidates’ former staffers and financed by familiar supporters.

The New York Times claims casino magnate Sheldon Adelson’s $5 million donation to Winning Our Future “underscores how the 2010 landmark Supreme Court ruling on campaign finance has made it possible for a wealthy individual to influence an election.” But wealthy individuals, like wealthy candidates, have always been free to spend as much of their own money on political ads as they please.

More plausibly, critics worry that SuperPACs encourage mudslinging because candidates benefit from the groups’ attacks on their rivals but do not have to take responsibility for them. When challenged about the accuracy of independent advertising supporting them, politicians can always say, as Romney did on Sunday, “that’s something which is completely out of the control of candidates,” who are legally barred from “coordinating” with SuperPACs.

Why not “let people make contributions they want to make to campaigns,” as Romney suggested, “and let campaigns then take responsibility for their own words”? A good question.

Like prostitutes who masquerade as masseuses or head shop owners who insist their fancy water pipes are intended for use only with legal herbs, SuperPACs have a shady reputation because of misguided prohibitions. “Improper influence” is a perennial hazard in politics. It can be kept in check by monitoring the favors that elected officials do for their supporters — and, more important, by limiting their power to dispense favors. But it cannot be regulated away by increasingly creative restrictions on speech.