Institute for Justice Defends Super PACs

John Kramer
John Kramer · January 18, 2012

Arlington, Va.—The 2012 presidential election is bringing almost daily warnings about the influence of so-called “Super PACs” on the political process.  A writer in The Atlantic called them the “WMDs” of campaign finance and to The New York Times they are “septic tanks into which wealthy individuals and corporations can drop unlimited amounts of money.”  The attorneys at the Institute for Justice, who argued and won v. FEC, the case that recognized that the First Amendment prohibits the government from preventing the formation of Super PACs, have a very different view.

Super PACs are voluntary associations that engage in political speech in campaigns for federal office.  They do not make contributions to candidates.  Rather, they make what are referred to as “independent expenditures”—spending on political speech in support of, or opposition to, a candidate for federal office.  If this political spending is made independently from a candidate, the Super PAC may accept unlimited contributions from individuals, associations, corporations and unions.

“Independent expenditure-only groups—or so-called ‘Super PACs’—are organizations made up of Americans who have joined together, pooled their resources and are attempting to persuade voters,” said IJ Senior Attorney Steve Simpson, who argued  “These groups are simply exercising their First Amendment rights to speak out about politics in the course of a campaign.”

Many commentators claim that Super PACs, because of their ability to raise and spend unlimited amounts of money, can dominate politics and “buy” elections.  “Political advertising does not buy elections any more than corporate advertising buys market share,” Simpson continued.  “If it did, we would all be driving American cars and drinking New Coke.  Ross Perot would have been elected President.”

“When people complain that there is too much spending in campaigns, they are really complaining that there is too much political speech in campaigns,” Simpson said.  “More spending means more information reaching voters about their political representatives.”

Moreover, independent spending can backfire—the most recent example being a film made by a Super PAC supporting Newt Gingrich that criticized Mitt Romney’s business record.  “The idea that voters will simply do as advertising directs them to do is nonsense,” Simpson said.

“Many of the most vehement complaints regarding Super PACs come from political candidates themselves,” said IJ Attorney Bill Maurer, who argued a successful challenge to Arizona’s punitive system of taxpayer financing of campaigns before the U.S. Supreme Court last year.  “Candidates cannot control the messages from independent expenditure groups and, ironically, contribution limits make it hard for candidates to respond by limiting the money they can raise.  But the answer to this inequality is to lift contribution limits, not to violate the First Amendment in a more even-handed fashion.

Many members of the media—including Stephen Colbert—repeatedly point out that Super PACs, which are supposed to be independent, are often run by associates or friends of candidates, raising concerns that they are not truly independent.  “Super PACs are required to be independent, but they aren’t required to be ineffective,” said IJ Attorney Paul Sherman.  “The campaign finance reform lobby created a system that pushes money to third-party groups.  Donors are naturally going to want to give money to groups that will spend it on effective political advocacy.  Of course those groups are going to be run by people with extensive experience in politics.  If reformers find that system absurd, they have no one to blame but themselves.”

Simpson concluded, “The problem is not that there’s too much money in politics, but that politics controls too much money.  If we want to keep people from trying to influence politics, we need to keep politicians from influencing everything we do.  Shrink the size and scope of government, and you remove the incentive to try to control it.”

Maurer concluded, “It seems like every election, those pushing for more restrictions and campaign finance regulations come up with a new boogeyman that is supposedly destroying democracy.  A few years ago it was 527 organizations and before that ‘soft money’; today it is Super PACs.  What they are really complaining about is that people are spending money to get their political viewpoints heard.  In the view of those pushing campaign finance restriction, this spending is corruption; what it really is, is free speech in action.”

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