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Lawrence Lessig

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The Great Promise of Super-PACs

Posted: 12/20/11 09:30 AM ET

There's a certain terror to the life of a Member of Congress that, with all their pomp and pretense, it's easy to miss. This terror is new. No one yet knows precisely how to tame it. And it may ultimately prove to be the single most important motivator to real campaign finance reform.

The terror runs something like this: An incumbent goes into an election, fairly confident about her prospects. Money in the bank, polling in the low sixties, an opponent with little chance to close the gap. Then 30 days out, a super-PAC drops half a million dollars in the district, funding attack ads, and ads that support the challenger. Very quickly, an easy reelection is thrown into doubt.

Incumbents are beginning to recognize this pattern. The most terrifying bit -- in the short term, at least -- is how they are reacting. They can't hope to hold in reserve enough money to respond to such an attack -- funders don't contribute to million dollar surpluses; they send their money to candidates on the edge. Nor can they turn to their largest contributors after the attack begins -- by definition, those contributors have maxed out. There's nothing more they can do.

So the incumbent has but one obvious insurance policy: super-PACs on her own side. To secure the protection the incumbent needs, the incumbent cozies up to the large but independent funders on his or her side, so that if a bomb gets dropped, there's a ready supply of bombs to support the incumbent.

And how do you cozy up to a super-PAC, to guarantee they'll defend you -- "independently," of course -- if terror raises its ugly head? By behaving in the way that super-PAC demands. "We'd love to be able to help you, Senator, but our charter requires that we only support candidates who get 80% or better on our score card." Incumbents thus work hard for good (super-PAC) grades. And like superpowers in a cold war, allegiance is secured with a simple understanding of defense.

This dynamic was first explained to me by former Senator Evan Bayh (D-IN). Bayh was on a panel about campaign finance reform; he was responding to a skeptic's claim that there was no real evidence that money mattered to a Senator's decisions. I left that panel convinced that there was little an incumbent could do to maintain her independence.

Then I met Congressman John Sarbanes.

Sarbanes is a three-term Democrat from Maryland. He is the son of the former Senator, who began his career in the same district. Over a glass of water at a local restaurant, Sarbanes explained to me his idea for super-PAC insurance -- an idea that required no compromise of principle, and indeed, one that would only strengthen the incumbent's support.

The key is small dollar contributors. If Sarbanes had an army of small dollar supporters, then he'd have someone to turn to if he were attacked. Someone who has given $50 in the past is likely to be able to give $50 again, especially in an emergency, especially to protect "her congressman" against an "outsider's attack."

But it's not easy to gather small dollar contributors. Indeed, for congressional races, it almost never makes sense. A single large contributor is worth 100 $50 contributors. Most incumbents thus find it easier to raise from the top down. It takes real discipline to raise from the bottom up.

So Sarbanes has done something that possibly no one else in the history of politics has ever done: He has formally and voluntarily tied himself to a funding structure that forces him to raise small dollar contributions. Sarbanes has established two "challenge funds," both now fully funded. The first fund (worth $500,000) can be drawn upon only when Sarbanes recruits 1,000 small contributors. The second (with $250,000) can be drawn upon only when those contributors have given at least $50,000. Until he hits the 1,000 contributor, and $50,0000 in contributions mark, he can't touch the $750,000 in the funds. But once he does, his campaign will be fully funded -- with super-PAC insurance bundled in for free.

Not many in Congress are likely to follow Sarbanes' lead. His ingenious idea takes real work. But if envy for his independence among Members grows, there is an obviously easier way to get the same protection: proposals like the Fair Elections Now Act, that would amplify the value of small contributions, or as I've proposed, a simple tax rebate in the form of a democracy voucher of $50 per voter, that would flood the field with small dollar contributions. Or even better, a constitutional amendment that limited the ability of super-PACs to drop bombs in the first place. Or even better still, a mix of both small dollar funding legislation and a limit on super-PAC power. Any of these reforms would give Members for free what Sarbanes is working overtime to earn: the independence necessary to be free to lead.

And thus may this innovation turn out to be a story with hope. For the current system is not stable. Until the rise of super-PACs, the system favored the incumbents. Now the incumbents work for the super-PACs. It is a demeaning and demoralizing life for people who like to think highly of themselves and the institution they serve. At some point they will get that they can fix this. Soon after that point, they just might.

Meanwhile, you could support this movement for a Congress "Free to Lead" (as Buddy Roemer puts it) by joining Sarbanes' army. Or at least by thanking him for his idea.


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