Last Tuesday, many so-called “Super PACs” for the first time disclosed their donors to the Federal Election Commission. But as proponents of campaign finance laws savor this newly released data—and whinge over how long it took for them to get it—here’s one thing you won’t hear them admit: We would have had this information weeks ago if our campaign finance laws were less strict.
Surprised? Don’t be. It’s just the latest example of the unintended consequences of the reform lobby’s zeal for ever-greater regulation of political speech. To understand how it happened, it helps to know a bit about the history of Super PACs.
Although the media commonly associates Super PACs with the U.S. Supreme Court's decision in Citizens United v. FEC, that decision is only indirectly related to the rise of Super PACs. Citizens United freed corporations and unions to spend on their own. But even after that decision, individuals and groups were still limited in their ability to pool money to spend on political speech.
It wasn’t until the D.C. Circuit Court of Appeals decided a case called SpeechNow.org v. FEC that individuals and groups were permitted to pool money in unlimited amounts to spend on political speech. As the D.C. Circuit recognized in that case, if a wealthy individual or a corporation acting alone is permitted to spend an unlimited amount on political speech, it makes no sense to limit the amount that individuals and other groups can pool together to spend on political speech.
But the D.C. Circuit also did something else: It held that groups that pool money to spend on independent political speech may be required to speak through heavily regulated political committees (or PACs). Reformers cheered this portion of the ruling because PACs are the most heavily regulated groups under federal campaign finance law. The Campaign Legal Center—the pro-regulation group run by Stephen Colbert’s personal lawyer, Trevor Potter—called it “a victory for disclosure.”
It turns out to have been a Pyrrhic victory.
The reform lobby ignored the fact that PACs, while heavily regulated, disclose their donors on a preset schedule. The plaintiffs in the SpeechNow.org case had argued that they should be subject to the less stringent regulations that apply to groups other than PACs. Those groups, however, are required to disclose their donors within 48 hours of spending $10,000 or more on political ads (and within 24 hours if it’s less than 20 days before a primary or general election).
In other words, we could have known all along who was giving to Super PACs if the reform lobby and the Federal Election Commission, driven by a mantra that “more regulation is always better,” hadn’t turned their noses up at the offer.
None of this is to endorse the idea that contributions to Super PACs should necessarily be disclosed. The First Amendment protects the right to engage in anonymous speech, and people who get together to engage in independent political speech should, ideally, be allowed disclose as much or as little about their donors’ identities as they like. But it’s a great example of how the reform lobby’s tactics invariably focus, first, on making it difficult to put spend money on political speech, with all other considerations being secondary.
In light of this, there are good reasons to be skeptical of their efforts to revive last year’s failed DISCLOSE Act, which would impose extensive new disclosure requirements on Super PACs and nonprofit organizations. For the reform lobby, the fact that some groups might stop speaking rather than comply with these new burdens is a feature, not a bug.