Super PACs Are Factions — and Madison Was Right About Them

I know this will sound backwards to a lot of people, but the panic over super PACs may be the most misunderstood non-scandal in American politics. We are told they prove the rich buy elections, that money has corrupted the system, and that the answer is to get money out of politics. But step back from the outrage and look at what a super PAC actually is. It is an association of citizens pooling their resources to speak. That is not a bug in a free republic. It is one of the oldest features of one.

The Founders had a word for this: faction.

In Federalist 10, James Madison defined a faction as a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.

Super PACs are factions by that definition. So are teachers unions, environmental groups, trade associations, corporate media, and university faculties. The difference is that the people who rage against super PACs rarely rage against those other factions, especially when those factions happen to share their politics.

The Founders already diagnosed this

Here is where the modern campaign finance reformer loses the argument before it starts. Madison asked two questions about factions: Can we remove their causes, and should we? His answer is the most important thing ever written about money and speech.

He wrote that there are two methods of curing the mischiefs of faction. The first is by removing its causes. The second is by controlling its effects. And there are two ways to remove the causes. One is by destroying the liberty which is essential to its existence. The other is by giving every citizen the same opinions, the same passions, and the same interests.

The first method, Madison said, was worse than the disease. Then came the line that ought to be carved into every hearing room where politicians propose speech limits. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.

That is precisely what campaign finance reform tries to do. It cannot make citizens all hold the same opinions. So it chooses the other method. It destroys liberty to get at faction. Every new rule rationing what a super PAC can say, who may give, and how much, is the first method in action. It silences factions rather than letting a republic regulate their effects through competition and structure.

And it never works as advertised.

The unseen costs of speech limits

Henry Hazlitt taught us to judge a policy by what is seen and what is unseen. The seen effect of a super PAC ad is often ugly. Some wealthy group runs attack ads in a swing state. The unseen effect is worse. The challenger cannot raise a dime under complex limits. The new group cannot afford an election law attorney. The ordinary citizen decides that speaking through an association is not worth the legal risk.

The entrenched incumbent, meanwhile, does just fine. He has name recognition, media access, and a political machine. Campaign finance limits do not restrain power. They license the already powerful.

This is where Thomas Sowell's insight about intentions and results belongs. The reformers intend clean politics. The result is the opposite. The 2002 McCain-Feingold law was sold as a way to break the link between big money and political parties. What did it actually do? It banned national parties from raising soft money. The money did not disappear. It moved to outside groups. The regulatory state then gave us super PACs as a workaround. And now the same people who built that machine denounce it. The unseen was entirely predictable to anyone who thought about incentives rather than intentions.

The deeper issue is that Washington is worth buying. A government that controls health care, energy, education, speech platforms, industrial policy, and trillions in spending invites people to spend money influencing it. The amount spent on politics is a fraction of the value of the favors government hands out. If you truly want less money in politics, shrink the state. When government no longer decides winners and losers, no one will pay to lobby it. But the reformers almost never want that. They want to keep the state large and merely silence the people they do not like.

The planners cannot know enough

There is also a Hayekian problem here. Campaign finance law assumes some central authority can know the right amount of political speech, who should be allowed to speak, and what counts as coordination. That knowledge is not possessed by the FEC or any planner. The rules grow more Byzantine every cycle, and the only people who can navigate them are insiders with lawyers. Speech regulation becomes a full employment program for the connected class. That is not the rule of law. It is the rule of commissioners.

The courts did not create super PACs. In Citizens United and SpeechNow.org v. FEC, they recognized what the First Amendment already guaranteed. Independent political speech does not lose protection simply because it is done through an association. The text could not be clearer. Congress shall make no law abridging the freedom of speech or the right of the people peaceably to assemble. A super PAC is modern assembly and petition, nothing more.

Why the First Amendment answer still holds

I know the objection. Do not super PACs corrupt elections? No. Quid pro quo corruption, cash for official acts, is already illegal. Super PACs cannot donate to candidates or coordinate with them. If they do, that is a crime. What the critics usually mean by corruption is that other people, with opposing views, have the audacity to speak. That is not a scandal. That is the First Amendment. The answer to speech you dislike is more speech, not a speech permit.

The human stakes are simple. The people who rage against super PACs do not rage against the editorial boards, university faculties, federal employee unions, and corporate diversity departments that push one side of every debate. Those are the most powerful political factions in the country, and they rarely disclose their spending. A super PAC, whatever its faults, is often the only way an outsider coalition can answer back. If you ban it, you do not silence the powerful. You remove one of the few tools ordinary people can use to organize against them.

We were not promised a pure democracy where 51 percent can quiet the other 49. We were given a constitutional republic, built to protect rights against transient majorities. Super PACs are factions. Factions are inevitable wherever liberty exists. The only real question is whether they will speak in the open, under the First Amendment, in competition with one another.

I choose the republic Madison described, not the silence the planners prefer.