Sunlight Foundation Reporting Group

Election lawyers say super PACs should shift strategy

Given the underperformance of many outside spending groups in this year's election, some election lawyers suggested they shift strategies to focus more on mobilizing voters on the ground rather than TV ads in a panel discussion today.

The discussion took place at George Washington University Law School during a conference analyzing the 2012 campaign.

Super PACs that spent the most put their money into TV ads, noted Monica Yuan, a fellow at the Brennan Center for Justice. In contrast, unions and union-affiliated super PACs put much of their resources into get-out-the-vote efforts. The union groups were relatively successful compared to other super PACs, and President Barack Obama’s victory has been partially credited to his own campaign’s sophisticated ground game.

A relatively little commented-upon result of the Supreme Court's 2010 Citizens United ruling that opened the door for super PACs is that it also opened the door for unions to turn their well-oiled political communications machines, previously restricted to targeting just union members, onto the general public. Likewise, corporations no longer have to restrict their communications efforts to just employees. 

Youn said it would be interesting if corporations and unions can further develop this ground game effort.

But Sam Issacharoff, an Obama campaign legal advisor and professor at New York University Law School, said he does not think groups like the Karl Rove-led American Crossroads shifting to a ground game is realistic.

“I am extremely skeptical from what I’ve seen inside the campaign that outside groups can mobilize the ground game in any meaningful way,” he said.

Nathaniel Persily, a professor at Columbia Law School, seemed to agree, saying that coordination is needed to build a successful ground campaign, and super PACs are barred from coordinating political expenditures with the candidates they are helping. For all the skepticism about the effectiveness of the rules barring outside groups from coordinating with the candidates they are trying to help, Persily said, “the coordination rules do have bite.”

Issacharoff saw the super PACs’ ineffectiveness in the presidential race as putting pressure on donors to give money to the candidates’ campaigns, where he said it is more efficiently used: He advocated raising the current contribution limits as “an easy way to redirect money to the candidates.”

Regardless, Issacharoff and Persily agreed that super PACs and outside groups should change their strategies to adapt to the current media landscape.

Political consultants “haven’t figured out a way to charge their clients for anything but TV buys,” Persily said.

He said the future will be more about voters watching movies such as “Hillary,” produced by the group Citizens United during the presidential primaries in 2008. The federal government did not allow the movie to air on cable TV as a video-on-demand because of a ban on corporate spending around the time of elections. But the group later challenged the ban in court and it was overturned by the Supreme Court in its Citizens United ruling.

Issacharoff added that super PACs are following an “old fashioned model” by running TV ads when young people are more active on the Internet.