Reining in Super PACs Won’t Be Easy

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Adam Skaggs writes that Congress needs to do something about the tsunami of money coming into campaigns via supposedly independent Super PACs:

Super PACs make a mockery of the idea of independence. As Elizabeth Drew wrote recently in the New York Review of Books, today, the “connections between . . . candidates and the Super PACs supporting them aren’t very well hidden.”….The candidate Super PACs were all established by former campaign advisors to the candidates. They are funded by friends and associates with close ties to the candidates (or, in the case of former candidate Jon Huntsman, by the candidate’s father). As election law expert Rick Hasen explained, Super PACs can do a lot that sure sounds like coordination, including soliciting funds, attending fundraisers, appearing in ads, and using the same lawyers — all without coordinating, and still legally claiming to be independent.

….There are countless ways the existing system of campaign finance should be reformed, but cleaning up Super PACs is an obvious first step. Congress should adopt common-sense rules that make terms like independence and coordination mean something. Super PACs that function as adjunct campaigns should be treated like what they are — and they should be subject to the same contribution limits as candidates. Putting candidates in charge of their own campaigns is the first step toward putting the public back in charge of democracy.

I would really like to hear more about this from someone steeped in — something. I’m not sure what, actually. Election law? Insider trading law? Maybe both. In any case, I’d like to hear in some detail how, exactly, rules could be written that would guarantee genuine independence. Even if some of the most obvious loopholes were closed, it still sounds close to impossible to do this without creating a lot of unintended consequences that could end up being worse than the disease we’re trying to cure. Here’s Drew, for example, on various proposals to cure the plague of Super PACs:

Another route would be through new legislation to assure the independence of the Super PACs. But even if this could be achieved another serious problem would arise: political consultants could be making their own decisions about what would help their candidates, who could lose control of their own campaigns.

Would true independence be better or worse than what we have now? That’s as unclear to me as it is to Drew. And it’s unclear to me if we could really police independence effectively anyway. After all, how many successful prosecutions for insider trading have we seen recently? Not many. It’s a similar principle, and it’s really, really hard to prove even though financial records often make a prima facie case that’s even stronger than suspicions of collusion in electioneering.

So: suggestions welcome. But I suspect this is a very, very hard problem.

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