Few subjects garnered more media attention during last year’s election than the advent of super PACs — political action committees that may collect unlimited contributions from individuals, corporations and labor unions for independent political spending. Super PACs arose following a number of tectonic shifts in the campaign finance legal landscape, the most notable being the Supreme Court’s decision in the Citizens United case, which struck down the ban on corporations making independent expenditures and electioneering communications.
No sooner had the election concluded than a media-driven narrative emerged concerning super PACs: The hundreds of millions of dollars spent by super PACs supporting Mitt Romney and other Republican candidates had negligible electoral effects; the donors to these groups threw away good money after bad. In short, the Republican-leaning super PACs were a billion-dollar bust.
What are we to make of such assessments? First of all, contrary to the arguments that super PACs were ineffectual in 2012, these groups substantially affected the presidential race by keeping it closer than it might have been otherwise. At the end of April 2012 — the month when the Republican nomination contest effectively ended — Mr. Romney was short on cash following a bruising primary battle and was about to face a spate of negative ads by President Obama’s campaign and its allies that lasted throughout the summer. Heavy spending by GOP-leaning super PACs during this span helped keep Mr. Romney’s campaign afloat until it could replenish its campaign coffers. Without those outlays, Mr. Romney may well have been a dead man walking by Labor Day.
For better or worse, super PACs played a large role in extending — and making more competitive — the GOP primary fight. Candidates such as Newt Gingrich and Rick Santorum likely would not have lasted as long as they did without multimillionaires such as Sheldon Adelson and Foster Friess funding super PACs supporting them. In the absence of super PACs, the GOP nomination process almost certainly would have wrapped up much sooner than it did.
Though super PACs were more effective than many have argued, the recent election demonstrated their limits as well. Because they cannot legally coordinate with candidates, super PAC messaging occasionally was duplicative of, or even at cross-purposes with, the campaign’s message and that of other super PACs, resulting in inefficiencies. In this way, the Supreme Court’s conclusion in Buckley v. Valeo, explaining why independent expenditures pose limited risk of corruption, was reaffirmed. There, the court stated:
“Unlike contributions, such independent expenditures may well provide little assistance to the candidate’s campaign and indeed may prove counterproductive. The absence of prearrangement and coordination of an expenditure with the candidate not only undermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will be given as quid pro quo for improper commitments from the candidate.”
Another result of the coordination restrictions is that super PACs — which are adroit at creating attack ads — are less well-situated to craft communications casting their favored candidate in a positive light or mounting effective get-out-the-vote, voter-registration and voter-identification programs.
Finally, because candidates (unlike parties or outside groups) enjoy discounted advertising rates under federal law, super PACs in some cases paid as much as six times more for their ads than candidates did. It was for this reason that the Obama campaign committee’s $275 million fundraising advantage over Romney’s proved to be so crucial. While GOP-leaning super PACs tried to fill the yawning fundraising gulf between the two candidates, they were hobbled by disadvantageous advertising rates that afforded them less bang for their advertising buck.
Looking ahead, super PACs almost certainly will play an enhanced role in elections in 2014 and 2016. In off-year elections such as 2014, the relative importance of super PACs will be magnified because, unlike presidential elections when so much spending by so many triggers the law of diminishing returns, off-year political spending by super PACs will be less subject to declining marginal utility. In 2016, where both parties will have open nomination battles, super PACs once again may contribute to drawn-out primary fights. If that happens, the Republican and Democratic nominees may face cash crunches heading into the summer. Thus, whichever side has the better-funded and more-effective network of super PACs may have a critical edge during the summer months, much like Mr. Obama did last summer.
In sum, GOP-aligned super PACs had a significant impact on the recently concluded election, though obviously not as profound as their major donors had hoped. Still, super PACs are here to stay. Any rumors of their demise are greatly exaggerated.
Matthew Petersen, a commissioner with the Federal Election Commission, served as FEC chairman in 2010.
By Andrew P. Napolitano
The president's men trash the Constitution to pursue antagonists