The foregoing quote comes from Ellen S. Miller, executive director of the Sunlight Foundation, speaking to the New York Times about Super PAC donors. Tuesday did not just give us the primary that sealed the Republican nomination; it was also the day that various super PACs disclosed their funding, sort of. America’s bold experiment in calling money speech has yielded roughly eleventy gajillion dollars for both Mitt Romney and Barack Obama, although Romney seems to have netted slightly more. A lot of his donors are whom you’d expect: a coal company, a lobbyist for Altria, Haley Barbour’s nephew. Others are a little trickier, including a quarter million dollars from a corporation “with a post office box for a headquarters and no known employees.” Thomas Jefferson must be rolling over in his
At least that donor had an address. The very notion of super PAC disclosure is made somewhat farcical by the existence of affiliated 501(c)4 organizations, which “can raise unlimited money but do not have to reveal their donors.” Those organizations can assemble contributions and re-contribute them in their own names, thus doing something to the money that accounting does not have a term for—washing it or cleaning it or something. Of course, giving money to an organization whose sole purpose is to give money to another organization strikes common sense as a fairly blatant circumnavigation of the law. But common sense has not been a feature of Citizens United v. FEC or the system it created.
The insistence that Super PACs not be affiliated with any campaign—to avoid “corruption or the appearance of corruption,” in Anthony Kennedy’s now-infamous formulation—became ridiculous quickly, thanks to Super PACs run by family members, Super PACs run by former campaign managers. No sensible person could believe that the super PAC with the same name as Newt Gingrich’s old PAC that spends all its money trying to make Gingrich president is not affiliated with the Gingrich campaign.
So unlimited super PAC donations essentially mean unlimited campaign donations. The conceit that super PACs are not campaigns is meaningless. The modicum of responsibility inflicted on donors by making them disclose their names—money-speech must have a speaker—is similarly meaningless in the context of anonymizing 501(c)4 organizations. For what it costs to incorporate a board and maintain its members, a campaign—sorry, a super PAC—can take all the money it can raise and not say where it came from.
In combination, these two practices undo campaign finance law. I’m sure there are still real and binding limitations on where candidates get their money and what they can do with it, but the big ones—a dollar limit and a disclosure requirement—are over now. I submit that, from the standpoint of an ordinary citizen, those are the things that matter.
According to the Center for Public Integrity, presidential Super PACs raised $49 million last year. That doesn’t include the $10 million that Sheldon Adelson and his wife gave Gingrich in January. Let us imagine—with no small satisfaction—that Ron Paul and Rick Santorum do not exist, and that $60 million covered the whole GOP nominating contest. I know that isn’t true, but it is logically possible in the Wittgensteinian sense.
Now consider that the ExxonMobil corporation made $41 billion in 2011. That’s profit, not revenue. For a mere .15% of their annual profit—considerably less than the cost of, say, letting their tax breaks expire—the good people at ExxonMobil could make some Super PACs and a couple of 501(c)4s and anonymously orchestrate Romney vs. Gingrich for the GOP nomination. Or two other candidates of their choosing.
That would be a dystopian corruption of American democracy that would probably cause rioting in the streets. It would be absurd, of course. It would also be perfectly legal, and we would be at the mercy of the press and individual consciences to hear about it.
I’m not sure which of those—the American press or the American conscience—is presently less reliable. I am certain, however, that American campaign finance law is useless. Whatever its letter pretends to, its spirit has been evacuated. Maybe that’s what this country wants: an election system where whatever you can do with money is kosher and fine. Maybe that’s how Americans want their wills to be expressed. Or maybe what this country wants and want Americans want are rapidly diverging things. We are running low on ways of knowing.