AFF's Doublethink

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The New York Times recently reported on the creation of a new group that was founded to encourage Republican candidates to support same-sex marriage.  For fans of free speech, the addition of this group to the political debate is unquestionably a good thing.  Yet there are many who think groups like this shouldn’t exist at all.

The group is American Unity PAC, and it is a “super PAC.”

American Unity PAC’s primary benefactor is a hedge-fund manager who has pledged $1 million to get the group off the ground.  And that’s what makes critics angry.  Until recently, such large contributions were illegal; federal campaign-finance laws prohibited individuals from contributing more than $5,000 to any group that was involved in federal elections.

All of that changed in 2010.  First, the U.S. Supreme Court decided Citizens United v. FEC, declaring that Congress could not restrict the right of corporations or unions to spend money on political speech.  Two months later, the D.C. Circuit Court of Appeals extended that ruling in SpeechNow.org v. FEC, declaring that the $5,000 limit on contributions to groups that run independent political ads was unconstitutional.  The resulting groups, which have come to be known as “super PACs,” may accept unlimited contributions from individuals, corporations or unions to spend on political ads, but cannot make contributions directly to candidates.

Since Citizens United and SpeechNow.org were decided, proponents of campaign-finance “reform” have heaped endless scorn on these decisions and the super PACs they made possible.  But despite the reformers’ complaints, the $5,000 limit never made sense when applied to groups like American Unity PAC, which spend money speaking directly to voters.  The U.S. Supreme Court has long held that individuals acting alone can spend as much of their own money as they want on such speech; the $5,000 limit only applied if two or more people pooled their money.  But if one person can legally fund speech, two or more people should be allowed to pool money to do the same thing—the First Amendment, after all, protects both speech and association.

The $5,000 limit was also a serious burden on political expression.  When the limit was first set in the 1970s, $5,000 had the purchasing power of more than $20,000 today.  As political debate increasingly moved to the airwaves, the limits often made it impossible for political groups that lacked a broad donor base to pay for expensive television advertising.

Indeed, despite wild predictions that super PACs would lead to corporations dominating American elections—predictions that have proven not to be well-founded—the creation of groups like American Unity PAC make it increasingly clear that the real beneficiaries of super PACs are political minorities.

Before super PACs, federal campaign-finance law made it illegal for groups to raise the type of seed money necessary to have a political impact.   The ability to raise large early contributions is crucial to such groups because it sends a signal of institutional credibility, making it easier to raise additional, smaller contributions later.  It also makes it possible to start speaking more quickly—imagine how difficult it would be for American Unity PAC to get its message out to the public if it had to raise 200 contributions of $5,000 rather than a single contribution of $1 million.

Despite the clear benefits for political minorities, there are still those who would like to see an end to super PACs.  Some have even argued that the Constitution should be amended to permit Congress to outlaw the groups as a means of leveling the electoral playing field.  But abolishing super PACs by rewriting the First Amendment won’t abolish the political influences that reformers fear; business and labor groups had a seat at the bargaining table long before Citizens United was decided.  What it will do is impoverish our political debate by shutting down one of the only effective means for political minorities to communicate their message to voters.

That would be a cruel irony.  The First Amendment was intended above all to protect dissenting voices, but if “reformers” efforts to “level the playing field” succeed, it will ensure that those voices can no longer be heard.

The author is an attorney at the Institute for Justice, which represented plaintiffs in SpeechNow.org v. FEC.

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