PACs, Populism, and Political Freedom

Across the country, there are as many systems of campaign finance law and regulation as there are states. These systems run the gamut from open and unlimited, to controlled and restricted. Campaign finance laws don’t just regulate what individual citizens can do with their time and money to promote political ideals, they also regulate groups of citizens, such as political party committees and PACs.

Looking at all 50 states’ approaches to regulating these groups, I noticed a strange trend:  overall, PACs face more limits and more restrictive limits than parties. Thirteen states have no limits on contributions from Political Action Committees (PACs) to candidates, while 20 states do not restrict campaign contributions from parties to candidates. Among the 37 states that limit PAC contributions to candidates for governor, the average limit on PACs is about $11,500. Among the 30 states that limit party contributions to candidates for governor, the average is about $223,000. Lastly, of the 37 states with limits on PAC contributions to candidates, 31 have higher limits or no limits on party giving to candidates. No state restricts party spending more heavily than PAC spending.

How do we explain this systematic legal prejudice against citizens who organize together in PACs? What could justify this de jure preference of the speech of citizens who organize one way over citizens who organize another way?

Do PACs need to be muzzled because they’re thought to be unusually corruptive? If PACs are more likely to influence votes through quid pro quo bargains with candidates, it might make sense to limit this possibility. But this is absurd. While many PACs can only hope to influence legislators, parties influence scores of them every day. Of course political parties influence votes; they threaten to withhold financial support from candidates who flout their wishes. They even have employees (whips) who enforce these bargains in the nation’s legislative chambers. If this practice is tolerable, then what PACs are doing certainly is as well.

Furthermore, while parties are formed by very small groups of political elites with narrow, entrenched interests, PACs are formed by citizens from every background, occupation, and perspective. There are PACs for specific issues, for specific businesses, for specific trades, and for huge, broad coalitions of ordinary Americans. Restricting PACs more heavily than parties simply makes it more difficult for everyday Americans to engage in the political process, and helps party officials protect their monopoly on political influence.

Perhaps the problem then is that political parties are traditional, known entities, while PACs are often viewed as a strange new force, not fully understood. The party’s role in our democracy is taken for granted, and we expect them to be intimately involved with our elections. But do we expect parties to be more involved than other citizens, including citizens who exercise their First Amendment right to free association? There’s no a priori reason that citizens who organize in a party committee should enjoy more political freedom than other citizens who organize as a political action committee. That parties have had a particularly central role in American politics is a historical fact, not a law of nature. If we take equal protection seriously, we should seriously question the extra burdens placed on PACs.

It could be that this legal prejudice against political action committees is the result of basic ignorance about what PACs are and what they do. It could be that it’s the result of rampant misinformation, intentional exaggeration, and knee-jerk alarmism in the wake of Citizens United. I’m sure all of that contributes to some extent.

However, I would explain this phenomenon more charitably:  it’s born out of a natural preference for the status quo, no matter how nonsensical it may be. Parties obviously prefer the status quo:  no other trade organization has such unquestioned and unfettered access to lawmakers. Politicians have almost as much reason to cling to the status quo. Incumbents have everything to gain from party support and everything to fear from PACs, which can be powerful equalizers for challengers. With these incentives, parties and politicians are unlikely to ever voluntarily level the playing field by lifting restrictions on PACs.

The ones hurt most by the status quo, and the ones with the most to gain by reforming it, are ordinary citizens. PACs allow groups of like-minded citizens to, in a way, form their own small parties and use their collective voice to promote certain policy goals. So why do citizens across the country seem perfectly happy to unilaterally disarm, politically speaking? I think the simple answer is inertia and risk-aversion. Americans are more wary of making our political system somehow worse than they are hopeful of improving it.

Luckily, many states that allow unlimited PAC donations have already given us great examples of flourishing political systems with large, diverse bases of participation. Their experiences continue to show that universal political freedom is practical, fair, and just. Meanwhile, our national experiment with campaign over-regulation has only squeezed out the “little guy.” The solution is actually an old idea that once again seems radical:  guarantee unfettered free speech and free association for all citizens (and groups thereof) with equal protection under the law, and put them back in control of our elections.