In 1976 the U.S. Supreme Court held that individuals have the right to spend as much as they want on independent political messaging. Wealthy individuals could, and did, spend extensively on elections. With two 2010 rulings, the U.S. Supreme Court lifted restrictions on corporation and union spending on politics. Individuals, corporations, and unions can now legally donate and spend unlimited amounts on independent political speech, as well as donate unlimited amounts to groups that make independent expenditures.
Distinction between PACs and super PACs
Super PACs are not a subset of PACs, as their common name implies. The two types of groups are legally distinct, and different rules govern each. Super PACs are more accurately defined by their legal description: independent expenditure-only committees.
According to the Federal Election Commission:
Independent expenditures represent spending by individuals, groups, political committees, corporations or unions expressly advocating the election or defeat of clearly identified federal candidates. These expenditures may not be made in concert or cooperation with, or at the request or suggestion of, a candidate, the candidate's campaign or a political party.
Unlike super PACs, traditional PACs have a $5,000 per person cap on donations and cannot accept money from corporations or unions. On the other hand, regular PACs may contribute directly to a politician or political party, whereas super PACs are limited to spending independently of such campaigns.
Super PACs are also exempt from requirements to immediately report funding sources.
Super PAC spending
Hitting $100 million in 2012
As of mid-May 2012, super PACs had spent $100 million on the 2012 elections. This is over three times the amount spent by outside groups in the 2008 elections by this point, and $30 million more than the total outside spending in the 2004 elections.
Conservative super PACS spent $91 million, compared to just $9 million by liberal super PACs. However, $86 million of the total was spent on the Republican presidential primary. Due in part to a crowded presidential field on the GOP side, as well as some hotly contested congressional primaries, conservative super PACs vastly outspent liberal ones through May 2012.
Lugar vs. Mourdock
A major focus for conservative super PAC spending in spring 2012 was the Republican primary for Indiana's Senate seat. Independent groups poured $3.6 million into the race, with most seeking to boost state Treasurer Richard Mourdock over incumbent Richard Lugar. Super PACs like Club for Growth Action -- which spent $1.68 million on the race -- took credit for tea party favorite Mourdock's victory over establishment candidate Lugar.
Differing spending strategies
Conservative groups have focused on advertising in 2010 and so far in 2012 -- a move that has been considered successful by its proponents. As conservative independent groups have a significant funding advantage, some liberal super PACs are focusing on less-expensive means to compete -- mainly grassroots and voter-registration efforts. Democratic super PAC founder David Brock said he would not engage in "an arms race on advertising with the Republicans." Other liberal super PACs, however, have chosen to focus on advertising.
Concerns about Super PACs
As Super PAC spending rises, some worry that the Supreme Court has gone too far in making rulings that permit the flourishing of super PACs. Fred Wertheimer, president of a nonprofit focused on campaign finance issues, wrote, "Unlimited contributions in federal elections invariably lead to corruption and scandal, and that is what is unfolding in the 2012 elections." Political lawyer Ken Gross said, "The superPACs are metastasizing. ... I think it's very disturbing that the groups are bigger than the candidates and almost bigger than the party committees themselves."
These concerns have been at play since the Citizens United case, with dissenting justices concerned about corporate money buying elections. President Barack Obama called the decision a victory for "powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans."
Close connections to candidates and parties
Some, including Senator John McCain, have raised concerns that many super PACs are not truly independent from candidates or parties. Sometimes, a Super PAC will be founded by a former campaign manager of a candidate the Super PAC supports. As Trevor Potter of the Campaign Legal Center said, "The candidate super PACs, what Mitt Romney has referred to as 'my super PAC,' are created by people closely associated with the candidates."
Lack of disclosure
With the Federal Election Commission requiring only periodic reports from Super PACs, donors to a Super PAC's ad campaign may be hidden until after an election takes place. Super PACs must submit a pre-election report 20 days before a primary it will be involved in, but between that report and the election, the Super PAC can wait until the next quarter ends before disclosing its finances. Super PACs of all political bents say they are not trying to hide donor sources but merely complying with the FEC rules; however, a number of Super PACs have received the bulk of their contributions after the 20-day mark, meaning those donors will not be revealed until after the relevant primary.
Paul Sherman of the Institute for Justice has argued, however, that after the reports do come in, "even among large-dollar donors, there are few surprises."
Because of the complexity of campaign finance laws, analysts disagree on which court decision was responsible for the rise of super PACs. Some, like columnist George Will, point out that citizens -- including wealthy individuals like George Soros -- have long been permitted to spend unlimited amounts on political speech. Others, like elections law professor Richard Hasen, hold that the 2010 Citizens United ruling set the precedent for massive collaborative spending on elections, a precedent that was soon explicated in Speechnow.
Buckley v. Valeo
In 1976, the U.S. Supreme Court ruled that the First Amendment protected individuals' right to spend unlimited amounts on political speech. The Court upheld caps on contributions to campaigns, but stated that restrictions on spending "relative to a clearly identified candidate" were unconstitutional.
In 2010, the U.S. Supreme Court ruled that the government cannot ban political spending by corporations or unions. Because these entities are "associations of citizens," the First Amendment right to free speech also applies to groups.
In Citizens United v. Federal Election Commission, the Supreme Court considered federal laws that prohibited "corporations and unions from using their general treasury funds to make independent expenditures for speech defined as an “electioneering communication” or for speech expressly advocating the election or defeat of a candidate."
In the majority opinion, Justice Anthony Kennedy wrote:
[W]ealthy individuals and unincorporated associations can spend unlimited amounts on independent expenditures. ... Yet certain disfavored associations of citizens--those that have taken on the corporate form--are penalized for engaging in the same political speech. When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.
Speechnow v. FEC
Based partly on Citizens United, the U.S. Supreme Court ruled that since individuals and groups can spend unlimited amounts on independent political spending, they may also contribute unlimited amounts to committees that make such independent expenditures.
A Federal Election Commission advisory opinion states:
Following Citizens United and SpeechNow, corporations, labor organizations, and political committees may make unlimited independent expenditures from their own funds, and individuals may pool unlimited funds in an independent expenditure-only political committee. It necessarily follows that corporations, labor organizations and political committees also may make unlimited contributions to organizations such as the Committee that make only independent expenditures.
- Super PACs Independent Expenditures Page at Sunlight Foundation
- Federal Election Commission list of Independent Expenditure-Only Committees
- OpenSecrets data on super PACs
- New York Times: "Who's Financing the Super PACs?"
- ↑ New York Times "Who's Financing the 'Super PACs?" May 7, 2012
- ↑ 2.0 2.1 2.2 The Atlantic "The New York Times' Disingenuous Campaign Against Citizens United," February 24, 2012
- ↑ 3.0 3.1 3.2 George Will "Super PACs can't crown a king February 29, 2012
- ↑ 4.0 4.1 Slate "The Numbers Don’t Lie," March 9, 2012
- ↑ 5.0 5.1 Fred Wertheimer "Citizens United and Contributions to Super PACs: A Little History Is in Order," February 21, 2012
- ↑ 6.0 6.1 Federal Election Commission "Independent Expenditure-Only Committees," Accessed May 12, 2012
- ↑ OpenSecrets "Outside Spending," Accessed May 11, 2012
- ↑ 8.0 8.1 8.2 OpenSecrets "Super PAC Spending Teeters at $100 Million Mark," May 10, 2012
- ↑ 9.0 9.1 Huffington Post "Super PACs, Conservatives Lead Surge In Independent Spending On Congressional Races," May 10, 2012
- ↑ 10.0 10.1 10.2 NPR "As 'Citizens United' Turns 2, SuperPACs Draw Protests," January 20, 2012
- ↑ 11.0 11.1 11.2 New York Times "Liberals Steer Outside Money to Grass-Roots Organizing," May 7, 2012
- ↑ 12.0 12.1 12.2 New York Times "Justices, 5-4, Reject Corporate Spending Limit," January 21, 2010
- ↑ 13.0 13.1 13.2 Brookings Institution "Campaign Finance in the 2012 Elections: The rise of the Super PACs," March 1, 2012
- ↑ The Daily Beast "McCain Rips Super PACs," March 27, 2012
- ↑ 15.0 15.1 15.2 Open Secrets "Stealthy Super PACs Influenced Primaries Without Disclosing Donors," July 2, 2012
- ↑ Washington Times "SHERMAN: Time to relax about super PAC disclosure," February 27, 2012
- ↑ Cornell University Law School "Buckley v. Valeo," January 30, 1976
- ↑ 18.0 18.1 Supreme Court "Opinion 08-205," Accessed May 11, 2012
- ↑ 19.0 19.1 New York Times blog "Big-Dollar Individual Campaign Giving and the Tie to Citizens United," March 2, 2012
- ↑ Federal Election Commission "Advisory Opinion 2010-11," July 22, 2010