Joe Biden’s super PAC stumble

By reversing his long-held opposition to accepting assistance from super PACs — independent political groups turbocharged by unlimited contributions from well-heeled donors — Democratic presidential frontrunner Joe Biden is wounding American democracy and jeopardizing his political standing. He ought to rethink it.

“Unite the Country,” the two-week-old super PAC supporting Biden in upcoming primaries, is led by his former campaign aides. In a familiar dance between presidential campaigns and allied independent groups, Biden has blessed the newborn as an “understandable response from Democrats” dedicated to defeating President Donald Trump. 

Yet until now, virtually all of Biden’s rivals for the Democratic nomination have spurned such plutocratic vehicles. Biden’s new stance could weaken their resistance. In recent days, the largest nurses’ union has stated it plans to reactivate its super PAC on behalf of Sen. Bernie Sanders (I-Vt.). And campaign advisers for the latest Democratic entry, former Massachusetts Gov. Deval Patrick, reportedly have been “testing the groundwork for a super PAC.”

The Biden campaign points out that super PACs are “permitted by current law.” But there is more to be said about this. The “law” in question has not been passed by Congress. It is, rather, a deeply flawed, expansive interpretation by some federal appeals courts of the Supreme Court’s controversial opinion in Citizens United v. FEC. These lower courts have deduced that since independent spending groups do not coordinate with candidates and therefore cannot corrupt or appear to corrupt them, there is no basis for subjecting their donors to decades-old federal contribution limits.

Unfortunately, these judges ignored the corruption potential of such donations. In the real world, wealthy individuals’ and organizations’ contributions to super PACs  are disclosed publicly and known to the candidates, with whom the donors also may communicate. Most tellingly, the overwhelming majority of top super PAC donors contribute directly, within legal campaign finance limits, to the very same candidates they support indirectly through unlimited contributions to super PACs. For example, of the top 100 individual donors to super PACs in the 2012 and 2014 federal election cycles, over 80 percent contributed both to candidates and to super PACs benefiting the very same candidates. Moreover, the best-financed super PACs are generally staffed by former aides of the candidates and political parties they advance. 

How, in light of these relationships between large super PAC donors and candidates, could anyone conclude there is no significant danger that the former could corrupt, or appear to corrupt, the latter? Amazingly, the Federal Election Commission has evinced such confidence in this myth that it permits candidates to speak at super PAC fundraisers from which they benefit.

There are signs that judges and prosecutors dealing with ground-level political behavior know better. Last year, the judge in the federal bribery case against Sen. Bob Menendez (D-N.J.), which ended in acquittal, affirmed that donations to super PACs potentially could corrupt candidates if the latter “placed subjective value” on the contributions, though he found insufficient evidence that the senator had entered into an explicit quid pro quo with a donor earmarking large super PAC contributions for his race.  

A recent federal indictment of two businessmen — associates of presidential lawyer Rudy Giuliani, regarding Ukraine — who contributed $325,000 to a pro-Trump super PAC alleges that they did so “to obtain access to exclusive political events and gain influence with politicians.” 

The raison d’etre offered by Unite the Country, echoed by the Biden campaign, is that the former vice president is enduring unprecedented attacks by Trump, his allies, Russians and the Republican Party in primary season and, therefore, needs financial resources to defend himself beyond those his campaign is legally permitted to raise. What this leaves out is that Trump is attacking other Democratic candidates; his rantings and negative ads are unlikely to influence Democratic primary voters who generally detest him; and Biden’s leading rivals have amassed far more money than he without dabbling in super PACs.   

Biden’s super PAC gambit also might damage him politically by reinforcing his rivals’ criticism that he is not progressive enough on the social equity issues expected to dominate the Democratic campaign. Super PACs have vastly increased the political clout of wealthy individuals and special interest organizations. According to opensecrets.org, independent spending in federal elections, overwhelmingly by super PACs, quadrupled between 2008 and 2016, reaching 22 percent of total expenditures. Even this figure understates their political impact since super PAC spending was focused on the most competitive races, especially the Senate and presidency. 

In 2016, 86 percent of super PAC funds came from the top 1 percent of their donors; 68 percent from the top 100. Can Biden’s allied super PAC be squared with his keynote theme that he is best equipped to retrieve middle- and working-class voters lost to Trump in 2016? Biden seemed to answer this question in the negative last April, when he declared, “I’ve said it before and I’ll say it again: To speak to the middle class, we need to reject the super PAC system.”

It is not too late for Joe Biden to admit error and change course. If he did, he might double down by supporting ongoing initiatives to force a Supreme Court review of the appellate decisions sanctioning unlimited contributions to super PACs. These efforts, encouraged by the reform group Free Speech for People, currently include a bipartisan congressional lawsuit (Lieu vs. Federal Election Commission) and passed or pending legislation to abolish super PACs in local or state elections in St. Petersburg, Fla., Seattle and Massachusetts.

Stephen R. Weissman is the former associate director for policy at the nonpartisan Campaign Finance Institute and former legislative representative for Public Citizen, a nonprofit consumer advocacy organization. He wrote two research papers for Free Speech for People that are mentioned in its briefs for the Lieu case.