Where the Action Is: Super PACs in 2012

In what has become the most quoted axiom in modern campaign finance, Justices Sandra Day O’Connor and John Paul Stevens opined in 2003, “Money, like water, will always find an outlet.” That outlet in the 2012 campaign is the “Super PAC,” a creature spawned by the Supreme Court’s Citizens United decision in 2010.

To understand what a Super PAC is, we need to go back to the Court’s seminal ruling in Buckley v. Valeo (1976). The Court upheld Congress’s attempt to regulate campaign contributions, but made an important exception for “independent expenditures”—that is, spending on behalf of federal candidates that is not coordinated with their campaigns. The rationale was that Congress could limit contributions made directly to candidates’ campaigns and political parties, but any attempt to limit an individual’s expression “independent” of a campaign would run afoul of the First Amendment’s freedom of speech guarantee. Ever since, free speech has been the highest hurdle for attempts at campaign finance reform to clear.

The Citizens United Ruling
The Citizens United decision extended the “independent expenditure” exception to corporations, labor unions, and a whole host of outside groups that are now free to raise and spend unlimited sums on behalf of candidates, parties, and causes—the key being that they may not legally do so with the candidates’ or parties’ knowledge. The Federal Election Commission (FEC) designates Super PACs as “independent expenditure only committees” to distinguish them from traditional PACs, which are still limited in the amounts that may be contributed directly to campaigns.

That distinction, upheld in Speech Now v. FEC (2010), is important because traditional PACs are limited to contributing not more than $5,000 to any federal candidate’s campaign per election and not more than $15,000 to a national party committee per calendar year while there is no limit on Super PAC spending. Apparently free speech costs plenty.

The Impact of the Super PACs
During the 2010 campaign, Super PACs were registering with the FEC at the rate of one a day and spent more than the national party committees. This election cycle, they are expected to spend more than $1 billion, money that can be raised from just about anywhere–wealthy patrons, corporate treasuries, union dues, and 501(c) 4 groups that are not required to disclose their donors.

In 2010, Super PACs such as American Crossroads (Karl Rove’s creation) and Club for Growth were extremely influential in delivering a Republican majority in the House. Just two years later, Democrats have caught up and super PACs are proliferating on both sides of the aisle. For example, Majority PAC and House Majority PAC are supporting Senate and House Democrats respectively, while the Congressional Leadership Fund is raising money for Republicans.

Super PACs and the 2012 election
Individual candidates are in on the action as well. Two former White House aides formed Priorities USA Action, a Super PAC dedicated to President Obama’s reelection; Restore Our Future supports Mitt Romney, while Newt Gingrich’s supporters recently launched Solutions 2012. The forecast is for a surge of Super PAC activity in individual Senate and House races, and it’s already heating up in some of the incumbent-vs.-incumbent smackdowns that resulted from redistricting.

Even traditional PACs have set up their own Super PACs. Concluding that nonprofits have free speech rights too, the U.S. Court of Appeals permitted EMILY’s List to establish its own Super PAC for independent expenditures. Incumbent officeholders, however, are subject to stricter limits.

Senator Mike Lee (R-UT) figured he ought to be able to make independent expenditures from his Constitutional Conservatives Fund (a leadership PAC), but the FEC disagreed. One of the commissioners acknowledged that a court challenge may ensue, observing “Everyone else gets to do unlimited [independent expenditures]. Why can’t Senator Mike Lee do IEs?” Likewise, the FEC takes a dim view of Super PACs recruiting sitting Members in their ads, as the Nebraska Democratic Party did with Senator Ben Nelson. Still unclear is whether candidates can use clips produced by a Super PAC and now in the public domain in their own campaign ads, as Rick Perry has attempted.

Problems Ahead
The potential for mischief, hypocrisy, and corruption is obvious and only reinforces the public’s distrust of the electoral process. Keeping expenditures independent of the candidate campaigns relies on a wink-and-nod policy that is virtually impossible to enforce. In 2010, Republican campaign committees unabashedly publicized their ad buys so that Super PACs could direct their spending more effectively—a clever ploy under the guise of “transparency.” Meanwhile, President Obama brags about prohibiting lobbyists from contributing to his campaign but looks the other way when his campaign urges those same lobbyists to contribute—generously—to the Super PAC created to reelect him.

In addition to prompting widespread public revulsion, there is another potential liability for candidates who rely on Super PACs. What if the Super PAC’s message conflicts with the candidate’s? What if they produce an outrageous ad that backfires and hurts the candidate more than it helps? This possibility has always existed with individual independent expenditures, but Super PACs elevate the prospect by another order of magnitude. As the law currently stands, candidates must navigate a path between violating the law if they coordinate their message or losing control of that message if they don’t. Surely there must be a better way.