How to End Super PACs, Once and for All

This proposal for Super PAC “insurance” could work by deterring third-party spending.

Donald Trump and Bernie Sanders agree: our nation’s system of financing campaigns is completely broken. Even before the Iowa Caucuses, Super PACs have already spent more than $100 million on the 2016 election cycle. Political prognosticators estimate that total spending in 2016 will reach $5 billion dollars. On this sixth anniversary of Citizens United, we must move past lamenting this disastrous Supreme Court decision and propose viable solutions to the vexing problem of money in politics.

Currently, Super PACs spend with impunity because there is no cost associated with their expenditures. Super PACs push the boundaries of campaign finance law, knowing that neither Congress nor the Federal Elections Commission (FEC) will rein them in. The courageous former Chair of the FEC, Ann Ravel, punctuated this point when she stated the efficacy of “the FEC and men’s nipples are probably comparable.”

In the face of this disheartening political reality, we must look outside the public sector in order to fix it. The private sector can and should counter the influence of Super PACs on our electoral system. To add costs to Super PAC spending, we must apply an old business model, insurance, to a new market vertical, Super PACs. Insurance in the Super PAC market, what would be called “Level PAC,” can protect insured candidates from Super PAC expenditures, reduce the influence of money and politics, and produce a return for investors.

Level PAC’s central goal is to deter third-party outside spenders by adding costs to their spending decisions, creating mutually assured destruction in campaign finance. If a Super PAC decides to spend against an insured candidate, Level PAC will respond with an independent expenditure of its own, attacking the preferred candidate of the Super PAC. Adopting General Colin Powell’s “Powell Doctrine” of using overwhelming force, Level PAC would respond with an expenditure two to three times as large as the outside Super PAC’s.

To illustrate, if Senate Majority PAC, a Super PAC supporting Democratic candidates for Senate, spent $500,000 against an insured Senator Kelly Ayotte (R) of New Hampshire, Level PAC would respond with as much as $1.5 million in her favor. As a result, Senate Majority PAC should be deterred from spending against Senator Ayotte, knowing that its expenditure will actually hurt its preferred candidate. Similarly, if Senate Leadership Fund, a Super PAC backing Republican Senate candidates, spent against Governor Maggie Hassan (D) in her race against Senator Ayotte, Level PAC would respond to those attacks. Thus, Level PAC will protect insured candidates; if a critical mass of candidates it insured, it will also reduce the influence of money in politics throughout the country.

Prior private ordering solutions have successfully deterred Super PACs from spending in competitive races before. In the 2012 U.S. Senate race in Massachusetts, then Senator Scott Brown and opponent Professor Elizabeth Warren agreed that should any third-party group spend on behalf of Warren or Brown, the benefiting candidate must donate 50 percent of the advertisement’s cost to the opposing candidate’s charity of choice. This agreement, which became known as “The People’s Pledge,” worked. In the highly competitive 2012 U.S. Senate races in Virginia and Wisconsin, outside spending accounted for 62 percent and 64 percent of total spending, respectively. In contrast, in Massachusetts, outside spending accounted for just 9 percent of total spending. The Pledge demonstrated that adding costs to Super PAC spending can effectively deter spending in elections.

As in any insurance market, the cost of a customer’s premium is a function of risk. In this case, a candidate’s premium is based on the likelihood of a Super PAC attack. Depending on how the FEC interprets its coordination regulations, candidates can either purchase an insurance policy directly or ask their supporters to finance it.

Patriotic investors looking to make a profit and fix democracy in the process will underwrite the insurance company. Affluent individuals are already backing campaign finance reform efforts. In 2014, tech titans like Reid Hoffman and Peter Thiel donated millions, alongside thousands of small dollar donors, to Harvard Professor Lawrence Lessig’s effort to reform campaign finance. Level PAC’s financing would be unique. Unlike all previous efforts at reform, Level PAC would ask individuals to serve as investors, not donors. Investors will see a return on their investment if the amount of money collected from premiums is greater than the amount of money paid out for claims.

Perhaps the most significant advantage of Super PAC Insurance is that it does not rely on legislative or judicial victories. With the requisite capital, it can begin operating tomorrow. Instead of waiting for Congress to act, Level PAC harnesses the power of the profit motive to curb outside influence. Raising the necessary capital for success will unquestionably be challenging, but the country’s effective governance may depend on this kind of private sector solution. Collectively, we can ratchet down the troublesome influence of Super PACs and preserve our democracy.

Nick Warshaw

Nick Warshaw is a third year law student at UCLA who has previously worked in technology and politics, including a stint at a Super PAC. This piece is adapted from "Forget Congress: Reforming Campaign Finance Through Mutually Assured Destruction," published in the UCLA Law Review.