The “Super-PAC Tax”

At the Guardian, Ben Jacobs takes notice of an aspect of campaign finance regulation that has suddenly become important with the massively growing presence of Super PACs, particularly in presidential politics: they do not share certain ad purchasing privileges made available to official campaigns. He explains it in terms of a self-funder like Donald Trump, who isn’t expected to bother with Super PACs, but it applies to the share of spending all the campaigns are expected to retain:

Most GOP candidates are delegating many of their key campaign functions to Super Pacs, which are not subject to campaign finance restrictions, but Trump’s effort is being funded entirely by the real estate mogul’s personal fortune.

This means Trump enjoys key advantages under federal communications law, which gives political campaigns special privileges over all other potential television advertisers – including Super Pacs, which are not considered political campaigns under federal law and whose commercials are no different legally from those for soap, laundry detergent or beer.

“This doesn’t mean that Trump can buy everything that he wants,” David Oxenford, a partner at the law firm of Wilkinson, Baker and Knauer and regular contributor to the Broadcast Law Blog, told the Guardian. But campaigns must be given a fair chance to buy political ads, and their spots can bump all other advertisers.

So a Trump television advertisement can bump an ad from, for example, Jeb Bush’s Right to Rise Super Pac on the eve of the New Hampshire primary.

All candidates have to be given reasonable access, so if Trump’s campaign is buying ads, other campaigns have to be given the same opportunities. But while some campaigns will be able to match Trump dollar for dollar on the air, not all will, and he can suck the oxygen away from those relying on Super Pacs to carry them to victory.

Further, not only will Trump’s ads get priority over other candidates’ Super Pac ads – he will pay less for them, too. Political campaigns are entitled to the “lowest unit rate” in the 45 days before a primary election, which means they get the lowest rate charged to any advertiser for any spot. Outside that 45-day window, campaigns are charged what’s called a “comparable rate” which is still a reasonable rate comparable to all other advertisers.

Again, Trump’s not the only candidate who will have a lot of money in a campaign fund, and even those with heavy reliance on Super-PACs can calibrate ad purchases so that Super-PAC ads are outside the “window” where they might be “bumped” or charged a very large premium. But still, a cost advantage is a cost advantage (Walter Shapiro is calling the higher ad rates a “Super-PAC tax”), so yeah, Jeb’s Super PAC better hoover up all the dollars it can.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.