Tell that to Justice Kennedy.

Photographer: Win McNamee/Getty Images

Some Supreme Doubts on Super-PACs

Francis Wilkinson writes editorials on politics and U.S. domestic policy for Bloomberg View. He was executive editor of the Week. He was previously a national affairs writer for Rolling Stone, a communications consultant and a political media strategist.
Read More.
a | A

Is Supreme Court Justice Anthony Kennedy having second thoughts about the campaign finance system he helped to create? The author of Citizens United v. FEC defended his handiwork before an audience of Harvard Law School students last week. But his confidence seemed shaken.

“In my own view, what happens with money in politics is not good,” he said.

It's hard to imagine what part of the system Kennedy believes is working. It takes a lot of money to organize political campaigns and communicate with tens of millions of voters. And the supply side of campaign finance has simply overwhelmed the enforcement side.

According to the Center for Responsive Politics, 1,221 super-PACS, which can raise unlimited sums, have organized for the 2016 election cycle. With the Iowa caucuses still three months away, total receipts so far have surpassed $300 million. Spending by so-called dark money groups, politically active nonprofits that aren't required to disclose their donors, exceeded $300 million in 2012, up from about $5 million in 2006. The trend line for 2016 isn't much in doubt.

Politics generally doesn't lack hypocrisy, but the campaign-finance system all but mandates it. In October, Bloomberg Politics published an interview with Mike Murphy, a longtime adviser to Jeb Bush who now runs a pro-Bush super-PAC that has raised more than $103 million for the 2016 campaign. The interview provided a window into Murphy's strategic thinking, making it clear that he sees no quick-strike potential for Bush in early primaries and is digging in for a long campaign that will require ample resources in March and beyond. Legally, Murphy is barred from sharing such thoughts with Bush's campaign. Yet it seems likely that one reason -- and quite possibly the only reason -- that Murphy submitted to a lengthy Q&A on shop talk was to do just that.

In recent days, the Bush campaign may have responded in kind. A campaign presentation somehow ended up in the possession of a reporter. It sketched the campaign's media buys in early states and gave an accounting of its field organizing structure. According to an Iowa politics blog, the document revealed "extremely troubling signs" for Bush's organization in Iowa. Perhaps a well-funded super-PAC might like to step into the breach? Does Murphy perchance read the political press?

Maybe the Bush document really was an unintentional leak. Maybe Murphy just wanted to chat with a reporter. But across the political landscape, the prohibition on coordination between campaigns and independent groups doesn't prohibit so much as inconvenience. Carly Fiorina's campaign doesn't even arrange her campaign events; a super-PAC does. Before his candidacy was official, John Kasich filmed political ads for the super-PAC supporting him. Correct the Record is an independent group that exists for the sole purpose of electing Hillary Clinton to the presidency.

Are they flouting the law? Clearly. Breaking it? Who would rouse themselves to pass judgment? Congress has abandoned lawmaking on campaigns altogether as issues that used to have broad support -- such as full disclosure of contributions -- now break along hard partisan lines.

The Federal Election Commission, which makes Congress look bipartisan by comparison, no longer pretends to function. A hobbled Internal Revenue Service, which is responsible for investigating abuses of the tax code, some of which are designed to funnel money illegally into politics, has been cowed into submission by budget cuts and a conservative campaign to portray it as an arm of partisan aggression.

And the high court, in the person of the supreme swing voter, has looked upon its work and declared, well, "not good."

Speaking at Harvard, Justice Kennedy also expressed doubt about the efficacy of another pillar of campaign finance -- disclosure. In Citizens United, Kennedy pointed out how prompt disclosure of contributions would keep the system running clean. At Harvard, he seemed to repeat that claim before demurring, "that's not working the way it should."

As former FEC chairman Trevor Potter wrote at Bloomberg View in 2011, the disclosure regime Kennedy envisioned in Citizens United was largely imaginary. The reality, having been gutted by the FEC, was a shambles before the case was even heard.

Nevertheless, Kennedy's reasoning isn't hard to follow. A system that offers full disclosure enables citizens and the news media to track donations, and surmise influence. And by keeping independent groups that spend unregulated sums separate from campaigns, candidates might, at least in theory, maintain distance from large donors seeking commensurately large favors.

But five years after his Citizens United decision, that system is nowhere to be seen. So what do we do now, Justice Kennedy? 

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Francis Wilkinson at fwilkinson1@bloomberg.net

To contact the editor responsible for this story:
Katy Roberts at kroberts29@bloomberg.net