A couple of days ago I linked to Adam Skaggs asking Congress to change the ridiculous campaign fundraising rules that allow Super PACs to coordinate with campaigns even though it’s supposedly strictly forbidden. Today, Rick Hasen says that Super PACs are yesterday’s news:
Right after Citizens United was decided, there was a great debate within the campaign finance world over whether the case would change campaign finance patterns. Some pointed to the fact that in the 2010 election, we saw barely any independent spending directly by corporations. My view had always been that most (for profit) corporations would not want to stick their necks out and risk alienating customers by putting their names on independent ads. For corporate money to really matter, there would have to be a way to filter it through committees and sometimes to hide the money entirely. Thanks to Super PACs and the transformation of 501c4′s, both of these are now possible and we are witnessing the corporate money coming in….We don’t know how much corporate money is coming in now (and as to 501c4s, because of lack of disclosure we likely will never have the full picture). But it seems a safe bet that there is lot more corporate money coming into the system than was (barely) allowed in the pre-Citizens United world.
….My big concern before yesterday was that we would see a lot of transfers of money from 501c4s to affiliated Super PACs to shield the identity of donors to Super PACs. I’m still trying to get a handle on how much of this took place (apparently less than I thought). But the reason these transfers are not taking place is that it appears the 501c4s are engaging in much more direct election-related activity than they have in the past. That is, we are seeing some 501c4s becoming pure election vehicles. The relation of 501c4s to super pacs is now like the past relation between 527s and pacs—these are now the vehicles of questionable legality to influence elections. While Adam Skaggs is rightly focused on fixing the coordination rules for Super PACs, this seems to be fighting yesterday’s war already. The key is to stop 501c4s from becoming shadow super PACs. Yes, campaign finance reform community, it has become this bad: I want more super PACs, because the 501c4 alternative is worse!
Well, yes, we could rein in 501c(4) spending by requiring that they disclose their donors, and the DISCLOSE Act would have done just that. Needless to say, it failed even in 2010, when Democrats controlled the House and had a huge majority in the Senate. It received, if I recall correctly, two Republican votes in the House and zero Republican votes in the Senate.
So there’s not really much chance that a revived and amended DISCLOSE Act is going to pass now. We are doomed.