Photo by Hibr, courtesy of Flickr

Imagine this:

It’s election season at Dudley High. Students are gearing up to vote for their next student body president.

There are only two candidates, and at the outset, it doesn’t seem like much of a contest.

The Candidates

Becky Swanson

• straight-A student 
• captain of the soccer AND debate teams
• voted “most likely to succeed in life” by classmates
• dating the quarter-back of the football team 
• bold vision for monthly student events and construction of an on-campus cafe

Larry Guffman

• solid c-minus GPA
• avid participant in video gaming club
• virtually unknown/ignored by other classmates
• campaigning on a single platform: a promise to advocate for the installation of video game consoles in the cafeteria and bathroom stalls

The election initially seems like a formality. Swanson is very popular and widely respected. Meanwhile, the majority of students don’t even know who Guffman is. Of those who do, most find it pretty random and laughable that’s he’s even running. But Guffman is smarter than he looks. And he’s got a small -(3 other dorky  guys, to be exact) but devoted crew of equally unpopular gaming enthusiasts who are hellbent on getting him elected. Guffman and his crew have scoured the school’s election bylaws and identified a crucial loophole. The rules on campaign spending and etiquette are pretty straightforward. As stated:

• Each candidate can raise and spend a maximum of $50 for campaign materials
• Regardless of First Amendment freedoms that may apply to students off campus, candidates are forbidden from producing attack ads and other forms of negative campaigning on school grounds.

Pretty straightforward, right?

But Guffman’s crew is more interested in what the rules DON’T mention.

Nowhere in the bylaws are there any restrictions placed on people NOT affiliated with the candidates from participating in any kind of campaign fundraising or messaging.

And so this is how it goes down:

One week before the election Guffman officially resigns from the gaming club. He temporarily cuts any contact with the three remaining members. The three, in turn, form what they call the “Students for Campus Digital Freedom” club. Each member chips in 100 bucks.  With their combined $300, they create and print a series of very well-produced attack posters aimed squarely at Becky Swanson.

Three days before the election, the posters are placed throughout the school. Some cover up the overtly positive fliers that Becky placed the week before (paid for with the $40 she raised from a bakesale).

One poster accuses Swanson of “suspiciously friendly” behavior with the English teacher. Another ad questions whether her high SAT scores were “legitimately” earned.

At the bottom of each ad it simply says: “Vote Guffman – Sponsored by Students for Campus Digital Freedom”

Upon seeing the ads, Swanson runs to the principal’s office. She bursts in outraged to alert him of the smear campaign at hand. “Those things just aren’t true,” she insists.

The principal summons Guffman to his office and accuses him of violating the rules – by spending more than $50 on ads and participating in extremely negative campaigning, both of which are explicitly forbidden. But Guffman pleads ignorance.  He claims to have nothing to do with the posters or the group that is placing them. He says he’s only spent 20 bucks of his own funds to print a few modest “Vote Larry – Play Video Games” fliers.

The principal is dubious, but after looking through the bylaws, realizes that there is nothing that explicitly forbids a third party from circulating ads that support one candidate or denounce another. Befuddled, he reluctantly sends Larry back to class.

By Election Day, the damage is done. Public opinion has shifted drastically, and even Becky’s circle of friends are beginning to think twice about her capacity to lead.  Most students still don’t know anything about Larry. But at least they know he’s not having “suspiciously friendly” relationships with any of the teachers. And anyway, who’s going to argue with playing video games at lunch?

By the end of Election Day, what just a week before was considered virtually impossible,  has become reality: with all the votes counted, Guffman emerges triumphant, with a commanding 65 percent of the vote and is crowned Dudley High’s next Student Body President.

All hail Larry!

So imagine if it really worked like that in U.S. Presidential elections? Keep on reading …

• The Rise of the Super PACs
• Political Fundraising on Steroids!

In the heat of the 2008 Democratic presidential primaries, a conservative political group called Citizens United produced a “documentary” that vilified democratic candidate Hillary Clinton. But when the group tried to run the piece on TV within a month of the primary election, the Federal Election Commission prohibited it from doing so, ruling it a form of corporate “express advocacy” banned by current campaign law on corporate spending.The group sued and the case eventually made it to the U.S. Supreme Court in the landmark Citizens United vs. Federal Elections Commission.

The key issue at play was whether political campaign spending should be considered  a form of speech or an overwhelming source of political corruption.  Arguing on behalf of the plaintiffs, lawyer Ted Olson told the Court:

“The most fundamental right that we can exercise in a democracy under the First Amendment is dialogue and communication about political candidates. We have wrapped up that freedom, smothered that freedom, with the most complicated set of regulations and bureaucratic controls.”

Apparently, Olson was quite convincing. In a bitterly divided 5-4 decision, the majority ruled that political spending (on campaigns) should indeed be considered a form of  speech protected under the First Amendment, and that the government has no business regulating political speech.

What that boils down to: money is speech and corporations have the same First Amendment protections as people.

The decision reversed previous campaign law and allowed corporations, unions, and other organizations to contribute unlimited amounts of money to groups called “independent expenditure” organizations that work on behalf of candidates but do not directly coordinate with them.

And so the Super PAC was born.

Strong opposition
Over the last two years, a growing number of political leaders and organizations have consistently spoken out against the Citizens United ruling, arguing that it allows unlimited corporate money to flood the political process and have a corrupting impact on democracy.  Among the strongest concerns is that candidates, if elected, will be beholden to the individuals and groups that help put them in power.

Legislation has even been introduced in the Senate to enact a Constitutional amendment that would overturn the decision.

In the Court’s dissenting opinion, Justice John Paul Stevens wrote:

“At bottom, the Court’s Opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding and have fought against the distinctive potential of corporate electioneering since the days of Theodore Roosevelt.”

In his 2010 State of the Union address, President Obama staunchly condemned the Supreme Court’s decision. With the nine justices sitting close by in the audience, Obama said:

“Last week, the Supreme Court reversed a century of law to open the floodgates for special interests — including foreign companies — to spend without limit in our elections. Well, I don’t think American elections should be bankrolled by America’s most powerful interests, and worse, by foreign entities. They should be decided by the American people, and that’s why I’m urging Democrats and Republicans to pass a bill that helps to right this wrong.”

The Court’s decision has already profoundly effected this year’s presidential race, as hundreds of Super PACs supporting the Republican candidates have sprung up and collected unprecedented, and formerly prohibited, levels of financial contributions from wealthy private interests. It’s predicted that more private money will pour into this election than ever before.

Interestingly, Obama’s reelection campaign recently announced that it was asking its supporters to form their own Super PAC and start raising money. The campaign argues that if the Republican candidates are all participating, it needs to as well.

Watch Outside Super PACs Poised to Dominate 2012 Spending on PBS. See more from PBS NewsHour.

If there’s anything you should remember about U.S. campaign finance law, it’s this:

For almost every set rule, there is most likely a loophole for getting around that rule.

Keeping track of America’s campaign finance laws is really difficult. Why? Because they change so much!

Take a quick scroll through this NPR timeline to get a sense of just how ridiculously fickle the process has been over the last century. It’s an epic and confusing ping-pong match between advocates of spending limits and clever political strategists who find ways to get around – or flat-out challenge – those rules.

And in this corner … the Super PAC!

The most recent, and controversial, example of doing a reverse course on once-established campaign law comes in the form of the super PAC (political action committee). Illegal as recently as the 2008 presidential election, super PACs came into legitimate existence after the Supreme Court ruled two years ago that corporate campaign contributions are indeed a form of free speech (read more about that here), and have already played a major role in the current presidential race. Essentially, they allow candidates to carry out what is best described as the “Tony Soprano strategy”: keep your hands clean and let your friends in the shadows beat the crap out of your rivals for you.

Super PACs are  loosely regulated independent organizations that can accept UNLIMITED contributions directly from  corporations, unions, and wealthy individuals. The groups can then use as much of that money as they want to buy political ads that support a particular candidate -  usually in the form of attacks against that candidate’s opponent – as long as the money is spent independently of the candidate’s campaign.

Super PACs open the floodgates to what is being considered the biggest wave of unlimited corporate spending and influence ever seen in the American political system. While there are still strict contribution limits for giving directly to a candidate or a political party, the super PAC pretty much allows wealthy people and organizations – aka special interests – to get around existing spending rules so as to significantly influence the outcome of elections. Super PACs are popping up like weeds, and the big one’s are almost all generously funded by a very small number of super wealthy Americans and corporations. And while the groups do have to eventually disclose who their donors are, they can delay doing so for long periods of time, often until after the election.

Everyone’s Doing It

All the current Republican candidates in this election have active Super PACs working on their behalf, with intentionally vague names that bear no mention to a candidate. For instance, the biggest super PAC, which supports Mitt Romney, is simply called Restore Our Future. It’s already raised more than $30 million and spent over half of that. In Iowa, before the caucus vote there, the group saturated the local airwaves with millions of dollars of attack ads aimed primarily at Newt Gingrich, the initial front runner. In the end, Gingrich came in fourth place in Iowa. Check out a selection of Restore our Future’s many attack ads here (NY Times).

There are currently 318 super PACs, according to the Center for Responsive Politics. They’ve collectively raised close to $100 million almost half that amount already (with  eight months remaining the general election!).  Even President Obama, who spoke out strongly against Super PACs when they were first allowed, just announced that he’s encouraging his supporters to form one and start raising money for it.

Fuzzy Rules

So what’s the catch? The only major stipulation is that the super PACs are not allowed to “coordinate” with the candidates or campaigns they’re helping out. It’s a pretty fuzzy line, though, because a candidate can still help raise money for a super PAC, as long as he doesn’t tell it what to do with the money. And in almost all circumstance, super PACs are run by the same people who have spent years working for the candidate. Yet, because of the required disconnect, candidates can remain completely unaccountable when one of their Super PACs produces an attack that presents potentially false information about a rival.

Some fun interactive resources

• A guide to political donations (NY Times)
• Tracking what the super PACs are spending (Pro Publica)
• Tracking independent spending (NY Times)
• A chart of week-by-week campaign spending (NPR)