New York, Jan. 5, 2012—Mitt Romney eked out an eight-vote win and Rick Santorum surged from behind, but the other big story in the Iowa caucuses was the dramatic debut of the super PAC, the relatively new kind of political action committee that grew out of the Supreme Court’s 2010 decision Citizens United v. FEC, which struck down the longstanding ban on corporate campaign spending.
That’s the view of election law expert Richard Briffault, the Joseph P. Chamberlain Professor of Legislation and vice dean of Columbia Law School. He is the author of a forthcoming article on super PACS to be published later this year in the Minnesota Law Review.
In the article Briffault explores the implications of Citizens United, which has led to the effective dismantling of campaign finance rules in place since the Watergate era, when revelations of misuse of secret campaign contributions by the Nixon White House led to wide-ranging reforms.
In the 5-4 decision, the sharply divided court found no evidence that unlimited campaign expenditures by corporations, unions and wealthy individuals have a corrupting influence on government, provided they are not given directly to the candidate.
“The super PAC is a new and very significant campaign actor. This is the first election since 1972 that looks like 1972 in terms of private large donations being given to candidate surrogates,” says Briffault. “This election closes out 40 years of campaign finance reform.”
Although super PACs have been around since 2010, Briffault observes in the article that they have evolved over two years from “primarily ideological or partisan vehicles to committees focused on advancing or opposing the fortunes of specific candidates.”
According to media reports, super PACs accounted for about two-thirds of the approximately $12.5 million spent by Republican presidential candidates in the Iowa caucuses. Super PACs were an important part of the spending that aided top-tier candidates Romney and Ron Paul. Millions of those dollars were spent on attack ads, which candidates are often loath to run themselves because of the potential for voter backlash.
Tuesday’s results suggest that the bifurcated strategy—let super PACs do the dirty work while candidates take the high ground—had a big impact. Newt Gingrich, who led in the polls in early December, saw his numbers collapse after opponents, especially Romney, unleashed a barrage of negative ads paid for by super PACs affiliated with their campaigns.
Although it is illegal for a super PAC to coordinate its advertising strategy with a candidate’s political action committee, super PACs are often run by former staffers or associates of the candidates. “These people can, in effect, hold a press conference to say what they’re doing,” Briffault says. “They can communicate through the media or even tweet about it.”
Briffault predicts that super PACs will play an even bigger role in the general election, and that when the last ballot is counted in November, each side will have spent at least a billion dollars. One role of the super PACs could be to focus on issues that the candidates need distance from, or to separate candidates from attack ads on their opponents.
If Romney wins the GOP nomination, for instance, he would have a hard time credibly attacking President Barack Obama’s health care reform law because Romney signed a similar legislation when he was governor of Massachusetts. “Super PACs could spring up focusing entirely on criticizing Obama’s legislation,” Briffault notes.
Similarly, liberal interest groups backing the Democratic president could set up super PACs to champion views Obama may not want to be closely associated with, such as the populist, anti-business credo of the Occupy Wall Street movement.
Ironically, relatively little of the money flowing into super PACs this election cycle has come from corporations, despite the rationale behind Citizens United that corporations deserve the same free speech protections as individuals. Most of the super PAC money, Briffault notes, has come from the so-called 1 percent – wealthy individuals who made a fortune on Wall Street, in Hollywood, or in industries such as agribusiness, defense, real estate, and oil and mining.
“Corporations have not been in the lead pushing for corporate campaign spending,” Briffault says. “These suits are pushed by nonprofit, right-wing and libertarian organizations, including right-to-life groups and anti-gay marriage groups.”
As Santorum’s strong showing in Iowa indicates, super PACs, like campaign spending generally, may not necessarily determine particular election outcomes, although Santorum also had a super PAC that helped him. Still, Briffault believes that in the long run, unrestricted corporate donations are bound to affect government and politics. “It means that there is going to be a lot of money from a relatively small number of people trying to shape the outcome of the election and the actions of the government that follows,” he says. “The little guy is being squeezed out.”
The only recourse for individuals without means is to lobby for more public funding of elections. “There’s no way to limit the donations of wealthy people so the only way to deal with it is to try to offset it by having public matches of small individual donations,” he says.
In addition to being an expert on election and campaign finance law, Briffault is a noted authority on state and local government law and property law, having served on or advised numerous commissions for New York City and New York state.
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NOTE: Richard Briffault is available for interviews. Columbia Law School maintains a broadcast studio on campus, and can arrange live and taped radio and TV interviews.
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