The Republican Lawyer Blog : SuperPACs

Former FEC Chairman Says SuperPACs Are Good for Democracy

Brian Bennett — Wed, 29 Feb 2012 12:46:00 GMT

In a radio interview last week, Center for Competitive Politics and former FEC chairman Bradley A. Smith spoke about the benefits of SuperPACs and how they actually benefit the electoral process. Mr. Smith believes one benefit is that without SuperPACs one candidate would have already won the Republican nomination because he would have far more money than his opponents. Mr. Smith said it is especially good if you are a supporter of one of the other Republican candidates.

One other benefit of SuperPACs is that they offset the monetary advantage that one candidate can have over another. Mr. Smith says the money from SuperPACs has enabled the campaigns of other candidates to stay alive. So instead of drowning out the voices of these other candidates, it has enabled them and their supporters to be heard. Going further to address the concerns that one person has the ability to keep a campaign afloat, Mr. Smith says this just shows the importance of large donors to keep a potentially unpopular message alive, citing historical examples such as civil rights and anti-slavery.

Mr. Smith finds support for these ideas by looking at the last race before the Federal Elections Campaign Act in 1968 when Senator McCarthy’s anti-war ideas were only able to be heard because a handful of millionaires spent almost ten million dollars to get the campaign up and running. Mr. Smith also rebutted the argument that wealthy individuals are only contributing in order to gain access and favors by saying that they are only contributing to candidates they like, as opposed to who they think is going to win. He says that the money is only going to candidates with whom the donors agree with and support, not the other way around. He cites political science data that has proven that the only benefit these wealthy donors wish to receive is good government.

Despite all the demagoguery in the media that SuperPACs are suffocating democracy, Mr. Smith makes good arguments to the contrary. SuperPAC contributions help support minority candidates.

Obomination: Obama’s SuperPAC Hypocrisy

Maya Noronha — Fri, 24 Feb 2012 13:03:00 GMT

It’s no surprise Obama thinks religious institutions should compromise their beliefs on abortion. Obama compromises his own beliefs when under enough pressure. Exhibit A: Super PACs.

At the State of the Union two years ago, Obama chastised the Supreme Court justices in the chamber for the Citizens United opinion which Obama claimed “reversed a century of law that I believe will open the floodgates for special interests — including foreign corporations — to spend without limit in our elections.”

Six months later, as Obama supported legislation to ban foreign funding in federal elections and heighten disclosure. He said, "Now, imagine the power this will give special interests over politicians."

The Obama campaign did not support superPACs… until the campaign discovered their stance on policy would be beat financially.

Obama Campaign Manager Jim Messina announced early this month that “the campaign has decided to do what we can, consistent with the law, to support Priorities USA in its effort to counter the weight of the GOP Super PAC.” He also said that White House and Cabinet officials will attend and speak at Priorities USA fundraising events.

Priorities USA, the political committee founded by former Obama aides, raised only $59,000 in January. The vast majority of that money came from one donor: John W. Rogers, who donated $50,000. In comparison, Mitt Romney’s Restore Our Future raised $6.6 million, and Newt Gingrich’s Winning our Future raised $11 million, Santorum’s Red White and Blue Fund raised about $2 million and Ron Paul’s Endorse Liberty raised $2.4 million.

With its White House backing, the pro-Obama SuperPAC is already running attack ads in Michigan where there is a primary on Tuesday. For the 44th president, apparently principles don’t matter as much as the almighty dollar.

Coordination Conspiracy: Que Sera, Sera

Stephen M. Hoersting — Wed, 15 Feb 2012 19:23:00 GMT

The Daily Caller has blown the lid off a scheme to coordinate communications funded by non-profit Media Matters with organizations and officials eager to elect Democrats in the fall.

Founded by [David] Brock in 2004 as a liberal counterweight to “conservative misinformation” in the press, Media Matters has in less than a decade become a powerful player in Democratic politics. The group operates in regular coordination with the highest levels of the Obama White House, as well as with members of Congress and progressive groups around the country.

The Media-Matters strategy is to spend $20M this year crafting ledes for the Washington Post, The Daily Kos, MSNBC and other outlets—and to finance the protest groups that will boycott advertisers on right-leaning cable and radio shows. Media Matters claims already to have dedicated 50 employees to collecting the scalp of CNN’s Lou Dobbs alone, and with financing the forcing of Glenn Beck from the cable rotation at Fox News to a smaller audience watching behind an internet pay-wall.

“A group with the ability to shape news coverage is of incalculable value to the politicians it supports, so it’s no surprise that Media Matters has been in regular contact with political operatives in the Obama administration,” the Daily Caller reports.

I cannot help but wonder what campaign “reformer” Fred Wertheimer thinks of all this. On Feb. 7^th, Fred released a statement that called the Romney-supporting Super PAC an “illegal operation,” saying that “to believe that the Super PACs … are ‘independent’ from the presidential campaigns they support, you must believe in the tooth fairy.” Fred’s organization also filed a complaint with the Internal Revenue Service alleging that the non-profit Crossroads GPS is really just a political organization, and should lose its tax designation.

One might make a snide comment regarding Fred’s vigilance; suggesting hypocrisy—something about sauce, goose and gander. But, while I would be interested to see whether Fred would support an IRS investigation into Media Matters, Fred has been remarkably consistent in his critique of Super PACs, charging that Obama’s Super PAC is no more independent or legal than Romney’s.

This isn’t surprising. The betting all along has been that Fred’s campaign restrictions are designed to sideline robust political speakers, in a manner that survives the Equal Protection Clause, while permitting mainstream news outlets to prepare November’s playing fields. This is reminiscent of the Progressives’ winning combination in 2008: McCain-Feingold plus JournoList equals Obama for America.

So on January 7^th, media commentator George Stephanopoulos asked Republican candidates an out-of-the-blue question, taken straight out of the Democratic blueprint: Can a state outlaw contraception? The follow-up from MSNBC suggests that a matter impinging on fundamental religious liberty is better understood, by a casual listener, as a denial of contraceptives available in any pharmacy.

No doubt, keeping-up with the machinations can be frustrating.

But the answer to Media Matters’ apparent conspiracy is not just to preserve Super PAC spending, but to preserve the First Amendment in all its applications. Media Matters may drive the news cycle, strategize with the White House, and organize and fund boycotts of advertisers to the Rush Limbaugh, Sean Hannity, Lou Dobbs, Glenn Beck and Mark Levin programs.

But so long as the law recognizes the rights of the Daily Caller to write, radio and cable jocks to speak, and Super PACs to spend, messages from both sides will get through.

And the efforts of Uncle Fred and Brother Brock will likely go for naught; filtered-out as background noise.

Stephen M. Hoersting is counsel to DB Capitol Strategies, PLLC.

A Quote Not “Questionable” at All

Stephen M. Hoersting — Thu, 26 Jan 2012 10:37:00 GMT

Professor Rick Hasen lists as his “questionable quote of the day” a quote not questionable at all.

The quote, taken from a timely op-ed by FEC Chairman Caroline Hunter in the Washington Times, is that “SuperPACs may not coordinate with any candidate.” Hasen says the quote should say: May not “illegally coordinate” with any candidate, but that much is understood.

These days the reform community, of which Professor Hasen is in sympathy if not a member, is making any argument to denigrate the freedom from regulation provided by the Citizens United and SpeechNow.org opinions.

It is true that Hasen lists factors that demonstrate a parallel interest between the candidate and the SuperPAC, in much the same way there is parallel interest in Oprah’s endorsement and President Obama.

Presumably, both want roughly the same policy outcomes and believe that comes about by electing the right candidates.

Call Chairman Hunter, the Courts and I sticklers, but that is called “democracy,” not coordination.

Still, let’s take Hasen’s tedious barbs one by one.

First, Hasen says “a federal candidate may solicit funds for a super pac (but not ask for unlimited sums).” True enough. This is because McCain-Feingold’s soft money ban still prevents candidates from soliciting funds above hard dollar limits, not because soliciting funds creates coordination that can result in a contribution from the SuperPAC to the candidate. The ability to solicit is protected by the right of association.

Second, Hasen says “the candidate may appear in a SuperPAC’s ad” well before the election, then he admits that the question is open; “pending before the FEC.” Both are true. But they are true because the FEC regulates coordinated “expenditures” and “electioneering communications” that occur inside elections, not coordinated "anything." For this, Hasen should blame the reformers, who had to curtail the definition of the electioneering communication because the Supreme Court limited the term expenditure to speech containing “express advocacy” in 1976.

Third, Hasen says that “a candidate may use footage from a super pac in his own ads.” True enough—and utterly beside the point: No one worries whether federal candidates are subsidizing the speech of independent Super PACs by recycling it.

Fourth, in a bid to make the reader squirm, Hasen says “that a super pac may be made up of a candidate’s former campaign manager, his father, his best friends, and his former co-workers.” Keep in mind that under the regulations former campaign managers and former co-workers cannot have been on the candidate's payroll recently enough to have their understanding of what a candidate needs said to the public to get elected. And while the hearts of a candidate's father or best friends are probably in the right place, their political skills are nil and as likely to damage campaign as help it. If Dad hires a consultant to guide him, regulation keeps him from knowing the candidate’s plans. If Hasen is arguing that both father and friend forfeit their rights to spend money independently in an election his son has entered, I’d like to see the reasoning under the First Amendment.

I’ll skip Hasen’s fifth barb; it is too similar enough to his fourth.

And last, Hasen says SuperPACs don’t have to meaningfully report. This argument needs to be unwound: too many reformers are indulging in it. Individuals that give money to a group for independent speech must be reported. This requirement is right out of the opinion in SpeechNow.org. The wrinkle comes from Citizens United, which rightly allowed corporations to spend their treasury funds on independent political communications. What, then, would Hasen have these corporations report? The disclosure of both the purchasers and purchase price of a Ford Fusion or F-150? And how the funds from that transaction resulted in dues paid to a trade association that decided to exercise its speech rights in an election?

Stephen M. Hoersting is counsel at DB Capitol Strategies, and was co-counsel to plaintiffs in the case creating the nation’s first SuperPAC, SpeechNow.org v. FEC.