Super PACs’ money could tip balance of power in Congress

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The 2010 Supreme Court ruling that allows unlimited contributions by corporations and unions has already affected the 2012 presidential campaign. But it could play a larger part in the balance of power in Congress this fall.

Voters in three states have been bombarded with television and Web advertising, automated phone calls and direct mailing, most of it directed against a candidate rather than in support of one. And in Florida, which votes Tuesday, spending is going up by the day.

Spawned by a Supreme Court ruling that loosened restrictions on independent spending by corporations, unions and advocacy groups and by subsequent rulings by the Federal Election Commission, the outside groups have the ability to raise and spend unlimited amounts of money to advocate around hot-button political issues, like support for or opposition to the Keystone XL pipeline, and to support or oppose candidates for office.

The outside groups can do just about anything a campaign or political party can do, including voter registration efforts and sending direct-mail pieces or automated telephone calls that frequently fly under the national media’s radar, but don’t have the same financial limits and donor disclosure requirements that candidates’ campaigns do.

Fred Wertheimer, founder of Democracy 21 and a decades-long advocate for less money in politics, predicts that super PACs will have more influence in the fall in targeted House or Senate races because the balance of power in both chambers is at stake.

If you’re a super PAC, “you spend the money on targeted races, that are close races where millions of dollars by a super PAC in a House race or a Senate race could well make the difference,” Wertheimer explained.

Election law expert and University of California, Irvine law school professor Rick Hasen agrees.

“In the presidential race, there’s just so much money that the candidates and parties are going to be able to raise that super PAC spending, while large, will not be dominant,” Hasen said. “But in a congressional race, if a (billionaire) Sheldon Adelson drops $5 million for a congressional candidate the way he did for presidential candidate (Newt) Gingrich, that would be huge spending relative to the kind of spending we see in congressional races.

A glance at super PAC spending in the GOP race

“And if, in fact, control of the Senate or House is going to depend upon a handful of races, I think we’re going to see the super PAC be the prime vehicle by which wealthy individuals, corporations and labor unions are going to influence control of the House or Senate.”

Super PACs quick to act

According to federal campaign disclosures, super PACs have spent more than $35 million on the presidential race, including $11.4 million in Saturday’s South Carolina Republican primary and $6.4 million on next week’s contest in Florida. And the spending has turned the race at least twice.

“Obviously, what we’re seeing is, you can kind of stand up these groups very quickly,” said Bill Allison of the Sunlight Foundation, a nonpartisan organization that seeks more governmental transparency. “They can have a huge impact in a very short period of time because they can take such big contributions, and they can really kind of change the game in an given state.”

Allison, Sunlight’s editorial director, points to Iowa, where former House Speaker Gingrich surged to the top of polls as the January 3 vote approached, only to be toppled by an onslaught of negative ads by Restore Our Future, a super PAC supporting former Massachusetts Gov. Mitt Romney.

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Gingrich finished fourth in the Hawkeye State and then made it clear that he intended to fight fire with fire. Winning Our Future, a pro-Gingrich super PAC, spent more than $1.76 million on ad time in South Carolina after an infusion of $5 million from Sheldon Adelson, a longtime Gingrich backer. Winning Our Future focused its South Carolina ads on Romney’s record, including his time at private equity firm Bain Capital and the health care law he signed while Massachusetts governor, which many conservatives say was the blueprint for President Obama’s health care reform law.

Romney came off a win in New Hampshire and entered South Carolina with a double-digit lead in most polls.

But as Romney’s numbers in South Carolina were going down and Gingrich’s were rising, Allison observed, “I think that has something to do with the speed with which the super PAC can raise money and get a candidate’s message out.”

The law prohibits a super PAC from coordinating its efforts with a candidate’s campaign.

“But again, these are run by former campaign aides and officials that worked with each of these candidates, and they kind of know what the candidate needs, and they’ve been very effective in going after (a candidate’s rivals) and doing the negative advertising,” said Allison.

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No coordination but plenty of family ties

Indeed, Rick Tyler, a former longtime Gingrich aide, is now a senior adviser to Winning Our Future, and Bill Burton, a former deputy White House press secretary in the Obama administration and a member of the Obama 2008 campaign team, is now one of the principals behind Priorities USA Action, a pro-Obama super PAC.

Wertheimer and his organization would like to see candidate-specific super PACs like Restore Our Future, Winning Our Future and Priorities USA Action banned all together.

“They are simply vehicles for circumventing the candidate contribution limits that exist in order to prevent corruption,” Wertheimer said. “They are a way for both a candidate and a candidate’s supporters to eviscerate the $2,500 contribution limit that applies to any individual contribution to a candidate.”

Wertheimer doesn’t believe that laws that prohibit “coordinating” between super PACs and a candidate’s campaign do enough.

“I don’t buy the idea that these groups are not coordinated,” Wertheimer said. “But beyond that, look, these PACs are run by very close associates – longtime associates of the candidate. The idea that they are somehow independent operations in the context that the Supreme Court and the statute has meant is ludicrous.”

Burton said Priorities USA Action is following all rules and laws on coordination “in both letter and spirit.” He also said that his pro-Obama super PAC makes its own decisions based on its own research, polling and focus groups. And regarding criticism from the likes of Wertheimer and Allison about his former ties to the president, Burton said it would be “illogical” for someone who didn’t support a candidate to start a candidate-specific super PAC like Priorities USA Action.

Wertheimer expects super PACs to have less influence on the general election campaign for the White House than they have had in the GOP primary race, because the president and the eventual Republican nominee “are going to have more than enough money to make their case.”

“The parties will be spending money. And the super PACs will be spending money, but they will not have the same kind of distorted impact that they’ve had in individual primary and caucus races in the nominating process.”

Setting the tone of the debate

Sunlight’s Allison sees super PACs using advertising to do something crucial in politics: define the terms of the debate about the record of an opposing candidate early on.

“What they can do is try to set the terms of the debate about their opponent. (In the case of GOP super PACs,) who will be, obviously, President Obama,” Allison said. “And whether it’s declaring he’s the ‘food stamp president’ or going after him as being in over his head or whatever (GOP) candidate message wins, they can amplify that message and run it (in advertising) and take these unlimited sums that the candidates can’t take themselves. And they can basically flood the airwaves with a message about their opponent. And I’m sure they’re going to be Democratic groups who are going to be doing the same thing to whoever the Republican nominee is.”

The result is likely to be, according to Allison, “an environment where political advertising becomes almost ubiquitous because they will be trying to get – to hammer home a message about the opposition candidate.”

Allison likens super PACs like the GOP-aligned American Crossroads to shadow political parties and candidate-specific super PACs like Restore Our Future, Winning Our Future and Priorities USA Action to shadow presidential campaigns.

Jonathan Collegio, spokesman for American Crossroads, says super PACs were a consequence of the last changes to campaign finance law.

“Super PACs are the logical and very predictable consequence of the last campaign finance reform effort, which was the McCain-Feingold law,” Collegio said. “That effort weakened political parties because (it limited) the amount of money that could go into political parties and party committees but opened up unlimited contributions to outside groups. All of this was predicted when the reformers passed McCain-Feingold in 2002. And, ironically, the ones who want to change the law now are the ones most responsible for the current regime.”

Collegio says the advertising done by American Crossroads last summer “was to frame the issue debate during the debt limit fight between the president and the Congress. And our goal there was to keep the president from raising taxes in a debt deal, and we believe we were successful in that effort.”

Pressed for details about strategy, Collegio refused to say much more other than that similar issue-based advertising regarding the president’s record on job creation “is fair game.”

Burton said he decided to help found Priorities USA Action because of the substantial financial resources being marshaled by GOP-aligned groups like American Crossroads and their wealthy benefactors. Burton says that his organization is on track to meet its goal of raising $100 million to support the president before Election Day and that the pro-Obama super PAC intends to focus its activities on direct communications with voters via social media, radio, mail and telephone.

Influencing the agenda of successful candidates?

Regardless of what happens in the presidential or congressional races this year, some observers see another possible impact from super PACs that could have far-reaching implications.

In a recent opinion column for CNN, Hasen argued that large, unlimited donations to super PACs could skew the agendas of successful candidates in favor of the wealthy individuals, corporations and labor unions that contributed to supportive super PACs before Election Day. Hasen’s argument was focused on members of the House and Senate, but its logic applies to successful presidential candidates.

Like Hasen, Allison sees the possibility of some kind of political scandal, ultimately resulting in more regulation of super PACs that would undermine the Supreme Court’s reasoning in 2010 for opening up the floodgates of independent spending.

Of the specific scenario Hasen posits, Allison said, “I don’t even think it’s a possibility. I think it will definitely happen.”

And Allison points to the controversy over Solyndra, the failed alternative energy company that received massive federal loan guarantees from the Obama administration and which also has ties to a fundraiser for Obama. “It’s historic. It’s both Republicans, Democrats. Big contributors get rewarded. Some get ambassadorships. Some get access to the White House. Some get loans, contracts. This is what we consistently see. The people who give the most money end up getting an awful lot for it in terms of access, perks, and occasionally policies.”

Wertheimer believes that the legal argument will continue.

“They’re vehicles for cheating and evasion and circumvention. And we have often in the past passed laws to prevent circumvention of existing laws and that’s what’s going on here.”

CNN’s Robert Yoon, Kevin Bohn, Paul Steinhauser and Peter Hamby contributed to this report.